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 Canadian Immigration and Refugee Law for Legal Professionals, 5e

CHAPTER 9
Humanitarian and Compassionate
Considerations Class

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 3

Learning Outcomes
• Describe the criteria to apply for permanent
residence under humanitarian and compassionate
(H&C) considerations.
• Explain the importance of considering the “best
interests of the child” in relation to an application.
• Identify H&C factors that may be applied against
both inadmissibility and eligibility issues for those
who do not qualify for regular immigration.

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Typical H&C Applicants for Permanent Residence

• Refugees who were refused status because of flaws in

the determination system
• Survivors of human trafficking;
• Family members of refugees or permanent residents
• Stateless persons;
• Victims of domestic violence who left a family
sponsorship because of the violence
• Persons whose removal from Canada would involve a
serious rights violation, such as lack of treatment for a
serious medical condition
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 5

Typical H&C Applicants for Permanent Residence

(cont’d)

• Persons from countries to which Canada generally

does not deport because of a situation of generalized
risk (moratorium countries)
• Persons who have been continuously in Canada for
several years
• Persons who have integrated in Canada socially,
culturally, and with family
• Persons who have worked for some time as part of
temporary worker programs, such as seasonal
agricultural workers
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Section 25 Criteria
• IRPA does not define “humanitarian” or
“compassionate”
• Before or after entry: ineligible or inadmissible for
technical, medical, or criminal reasons
• The minister/delegated officer has discretion to grant
status to a foreign nationals where there are strong
H&C reasons and doing so is justified
• Section 25.2(1): public policy considerations

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Kanthasamy v Canada (Citizenship and

Immigration)

• December 10, 2015 Supreme Court of Canada

case is important for two reasons:
1. It broadens the scope and definition of H&C grounds
under the IRPA
2. H&C considerations should include the best interests of
a child directly affected and should also provide
equitable relief

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Best Interests of a Child Considerations

• The decision-maker takes into consideration the child’s:
• emotional, social, cultural, and physical welfare;
• Age;
• level of dependency on the applicant;
• the degree of establishment in Canada;
• links to country of origin or previous residence;
• conditions of that country and the potential impact on the child;
• medical issues or special needs;
• educational needs; and
• gender, where relevant to immigration matters.

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Public Policy Considerations

(IRPA, s 25.2)
• The minister may create a new category for permanent
residence by policy
• All cases that fit the category are likely to be accepted
• Recent examples of public policy considerations:
• A temporary public policy for nationals of Haiti and
Zimbabwe who were affected by the lifting of the
temporary suspension of removals (TSRs)
• Resumption of Canadian citizenship
• Vietnamese living in the Philippines

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 10

Request Under the Humanitarian and

Compassionate Class

• To remain in Canada:
• A written request for an H&C exemption must
accompany an application to remain in Canada
as a permanent resident (Form IMM 5283)
• For a foreign national outside Canada:
• A written request for an H&C exemption must
accompany an application for a permanent
resident visa

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Processing Steps
1. Immigration officer assesses eligibility of the applicant under the
permanent resident category
2. If applicant meets program requirements, the officer decides whether
exemption applies for applying outside Canada for H&C
considerations
3. If applicant is exempted, IRCC issues a letter and sets out further
requirements for processing
4. Admissibility criteria assessed (that is, financial, medical, criminality,
prior misrepresentation, or inadmissible family member)
5. “Notice to appear” issued for a final interview with officer if found not
inadmissible
• Note: Decisions on applications made outside Canada are made in a
similar manner, by a visa officer, but steps 3 and 4 are skipped
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 12

Decisions on Humanitarian and

Compassionate Applications
• Reasons for a refusal are not automatically
provided because there is no statutory
obligation to do so
• No right to appeal refused applications
• May apply for leave for judicial review with the
Federal Court within 30 days after the date of
refusal

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