A Comprehensive Guide to Humanitarian and Compassionate (H&C) Applications in Canada

Humanitarian and Compassionate (H&C) applications are an important avenue under Canada’s immigration system for individuals facing exceptional circumstances. Governed by Section 25(1) of the Immigration and Refugee Protection Act (IRPA), these applications allow foreign nationals who do not meet the usual requirements to seek permanent residence based on unique and compelling personal circumstances.

This guide provides a thorough examination of H&C applications, including their purpose, key factors, legal considerations, and practical guidance for applicants.

What Is an H&C Application?

H&C applications are discretionary tools that allow immigration officers to consider exceptional circumstances in granting permanent residence. Unlike other immigration streams with clear eligibility criteria, H&C decisions are based on a holistic assessment of the applicant’s unique circumstances.

When to File an H&C Application?

• Ineligibility for other programs: For those who cannot meet requirements under economic, family sponsorship, or refugee protection pathways.

• Undue hardship: When removal or adherence to standard immigration rules would cause significant personal hardship.

• Admissibility issues: For individuals deemed inadmissible (except for reasons of security, organized crime, or human rights violations).

Key Factors Considered in H&C Applications

H&C applications involve a case-by-case analysis of the applicant’s personal circumstances. Decision-makers assess several critical factors, as outlined below.

1. Hardship

Hardship refers to the challenges an applicant would face if removed from Canada. This cornerstone factor examines:

• Country conditions: Adverse political, economic, or social conditions, such as violence, systemic discrimination, or natural disasters.

• Health-related issues: Lack of access to necessary medical care or treatment in the applicant’s home country.

• Family separation: Emotional and logistical challenges of being separated from loved ones residing in Canada.

Legal Interpretation

The Supreme Court of Canada in Kanthasamy v. Canada shifted the interpretation of hardship from rigid descriptors like “unusual, undeserved, or disproportionate” to a holistic, flexible standard. Officers are now required to evaluate all aspects of an applicant’s situation to determine if relief is warranted.

2. Establishment in Canada

Establishment measures how deeply rooted an applicant is in Canadian society. Decision-makers evaluate:

• Stable employment and financial independence.

• Participation in community or voluntary activities.

• Long-term residence and integration into Canadian life.

• Educational achievements and language skills.

Challenges in Establishment

While establishment is a critical factor, it is not always determinative. Courts have ruled that:

1. Establishment and status: Applicants without legal status may face difficulty proving establishment unless their contributions are exceptional.

2. Misrepresentation and establishment: Misrepresentation, such as fraudulent entry, can reduce the weight of establishment but must not completely negate it (Liu v. Canada).

3. Best Interests of a Child (BIOC)

The best interests of any child directly affected by the decision must be given substantial weight in H&C applications, as mandated by the Supreme Court in Baker v. Canada. Decision-makers are required to:

• Examine a child’s emotional, social, and educational needs.

• Assess the impact of removal on the child’s well-being and stability.

• Evaluate from the child’s perspective, considering their unique circumstances.

Key Considerations

• The child’s age and dependency on the applicant.

• Ties to Canada, including education and social connections.

• Medical or special needs and access to services.

• The impact of removal on family unity.

4. Adverse Country Conditions

Country conditions are a significant factor when evaluating hardship. Officers consider:

• Political instability, violence, or widespread discrimination.

• Lack of access to basic rights, employment, or healthcare.

• Risks associated with belonging to marginalized groups.

Case Law

In Hermann v. Canada, the Federal Court held that hardship must be assessed based on the applicant’s likely country of removal, typically their country of nationality. Assessment of conditions in a third country where the applicant lacks legal status is unreasonable unless the applicant can legally reside there.

5. Misrepresentation

Misrepresentation complicates H&C applications but does not automatically disqualify applicants. Decision-makers assess:

• The severity and intent of the misrepresentation.

• Efforts by the applicant to show remorse and reform.

Balancing Misrepresentation

In Shen v. Canada, the Federal Court ruled that decision-makers must avoid “double counting” misrepresentation—penalizing the applicant in multiple aspects of the decision. However, misrepresentation can still influence factors like establishment and credibility.

Key Legal and Procedural Principles

1. Holistic Analysis

Officers must conduct a holistic assessment, considering all relevant factors in their entirety. Isolated factors like hardship or establishment cannot be evaluated independently but must be seen as interconnected.

2. Empathetic Decision-Making

The Federal Court in Tigist Damte v. Canada emphasized that decision-makers must step into the applicant’s shoes and apply both analytical reasoning and compassion.

3. Risk of Third-Country Removal

Hardship cannot be based on relocation to a third country unless the applicant has a legal right to reside there. Courts require officers to evaluate the likelihood of subsequent removal from third countries to the applicant’s country of nationality.

Practical Steps for Filing an H&C Application

1. Build a Strong Narrative

• Present a cohesive story connecting hardship, establishment, and other relevant factors.

• Address past missteps, such as misrepresentation, with honesty and evidence of reform.

2. Provide Robust Evidence

• Medical records: Support health-related claims.

• Employment and financial documents: Demonstrate stability.

• Testimonies: Letters from family, community leaders, or professionals.

• Country reports: Credible evidence of conditions in the applicant’s home country.

3. Seek Legal Assistance

Navigating an H&C application requires expertise. An immigration lawyer can:

• Identify key factors in your case.

• Compile and present compelling evidence.

• Craft arguments that align with relevant case law.

Common Challenges in H&C Applications

1. Misrepresentation

While misrepresentation may weigh negatively, courts have ruled that applicants must still receive a fair evaluation of other factors. Applicants should:

• Address misrepresentation upfront.

• Show remorse and demonstrate good conduct since the violation.

2. Conflation of Factors

Officers must avoid conflating hardship and establishment, as noted in Jeong v. Canada. For example, assuming that strong establishment mitigates hardship in the country of origin is unreasonable.

3. Weak Evidence

H&C applications hinge on evidence. A lack of documentation can lead to refusals, even if the applicant has compelling personal circumstances.

Conclusion

Humanitarian and Compassionate applications are a complex but vital pathway for those facing exceptional circumstances. Success requires a careful presentation of evidence, a compelling narrative, and alignment with legal principles. At Blacksy Immigration Law Firm, we are determined in helping clients navigate these challenging applications with empathy and precision.

Contact us today to explore how we can assist with your H&C application and help you build a new life in Canada.

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About the Author

I’m Ahmet Faruk Ocak, a Canadian immigration lawyer and the founder of Blacksy Immigration Law Firm 🌊. 

At Blacksy, we specialize in providing honest, straightforward, and tailored immigration solutions to individuals and businesses worldwide. Our brand promise is simple: no unnecessary fuss, no false hopes, and no empty promises—just realistic, reliable guidance to help you achieve your immigration goals.

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