Persons who are ineligible to apply for permanent residence under the various immigration programs may be able to seek same on humanitarian and compassionate (H&C) grounds. This avenue made possible by virtue of s.25(1) of the Immigration and Refugee Protection Act (IRPA), allows foreign nationals in Canada who are otherwise inadmissible or failed to abide by the conditions of their stay to apply for permanent residence from within Canada on H&C grounds, if justifiable reasons exists. On the other hand, if a person is outside Canada, they are required to apply for permanent residence under a family, economic, or refugee class and include a request for H&C consideration, if necessary. Persons ineligible to apply include those found inadmissible on grounds of security, violating human or international rights, or organized criminality. 

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Assessing the Application

Immigration Refugees and Citizenship Canada (IRCC) assesses H&C applications on a case-by-case basis and the decision is discretionary. Throughout the application process, the officer assesses several core factors to determine whether there are sufficient reasons present that warrants an approval. These include: the applicant’s degree of establishment in Canada, the best interest of the children directly affected by the decision (if applicable), adverse country conditions, health considerations, family violence, social ties to Canada, and other unique or exceptional circumstances that can merit relief. IRCC will not assess risk factors such as persecution, risk to life, and cruel and unusual treatment or punishment; a person should consider submitting a claim for refugee protection where this is the case.  

 

Has a removal order been issued?

Persons in receipt of a removal order may still apply for permanent residence on humanitarian and compassionate grounds, however, the act of submitting the application will not halt the removal process. Instead, a person may request that the Canada Border Services Agency (CBSA) defers the removal to a later date. The applicant may proceed to the Federal Court to request a stay of removal where a decision on the request is not made, or where it has been refused. To note, where a person has been removed, the processing of the application does not cease.

 

Decision

Once the assessment is complete, a decision is rendered. If the application is approved, the applicant will be required to undergo a medical examination and provide a police clearance in order to obtain permanent resident status. A refusal on the other hand means that an applicant is required to leave Canada. In the latter case, the person should consider applying to the Federal Court for Judicial Review within 15 days if they believe the decision is wrong in fact, law, or mixed fact and law, or where there has been a breach of procedural fairness.