Avoiding excessive and undue hardship

Normally, applications for permanent residence are required to be filed at a visa post outside of Canada. Sometimes, circumstances arrive that compel an individual to apply for immigration from within Canada. Humanitarian and Compassionate applications, as the stream is called, require the applicant to prove that they would experience unusual and undeserved or disproportionate hardship if they were required to leave Canada. The cost and inconvenience of applying outside Canada is not considered a hardship.

Humanitarian and Compassionate applications have several pros and cons. On the plus side, they offer a last hope for a person to remain permanently in Canada when they would otherwise not qualify under other immigration streams. For example, elderly parents who have no family members in their country or proper care have benefitted from H&C applications when the Canadian family member also undertakes to “sponsor” them. In other words, promises the government to be fully responsible for their welfare. That said, it is important to understand that H&C applications take years to process, and during that time the applicant may find themselves out of status in Canada.

In the recent case of Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court of Canada addressed how Officers are to assess humanitarian and compassionate considerations under s. 25(1) of the Immigration and Refugee Protection Act. The Court instructed Visa Officers not to restrict their discretion by interpreting the requirement that an applicant demonstrate “unusual and undeserved or disproportionate hardship” as separate thresholds for relief apart from the humanitarian purpose of s. 25(1). Rather, the words “unusual and underserved or disproportionate hardship” should be treated descriptively, and Officers should take into consideration ALL relevant humanitarian and compassionate considerations in a particular case. The case also addressed the need to take into account the best interests of a child directly affected by a decision. On that point, the Supreme Court emphasized that the bests interests of a child must be a singularly significant focus and perspective in s. 25(1) decisions, and any decision that does not sufficiently consider the best interests of children affected by the decision will be found to be unreasonable.

H&C applications carry no appeal rights and do not prevent an individual from being removed from Canada by the Canadian Borders Services Agency if a removal order is issued. Moreover, even after being approved on humanitarian and compassionate grounds, if an applicant is otherwise inadmissible to Canada (due to health, criminality, or other issues*). Finally, when applying for an in-land H&C, the applicant normally cannot travel outside of Canada for the duration of the application. For these and other reasons, a detailed analysis of all the applicant’s circumstances is required by an experienced immigration lawyer. At Borders Law Firm we are proud of our track record in obtaining approvals for H&C applications.

*It is also possible to ask for an exemption not only on the requirement to apply for immigration from outside of Canada, but also for any ground of inadmissibility which may prevent an individual from obtaining Canadian residency.

To learn more about whether your circumstances warrant applying under the H&C program, please contact one of our lawyers.

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