It can be extremely frustrating if your application for Permanent Residency is refused and you feel as though your specific case is justified. In these special circumstances, you may be able to apply under the Humanitarian and Compassionate consideration, better known as H&C. There are several restrictions with respect to examination of applications for H&C consideration.
A foreign national who is inadmissible or who does not meet the requirements of the Act or Regulations may make a written request for consideration of H&C under A25(1).
Some of the restrictions of applications for H&C consideration include:
Certain persons who have an outstanding H&C request
Inadmissibilities for which an exemption may not be requested
Persons who are, were or have become permanent residents or Canadian citizens
Persons who made a refugee claim
The immigration program in Canada is specially structured to value discretion; it ultimately benefits our clients and is consistent with the objectives of the Immigration and Refugee Protection Act. Essentially, the purpose of the H&C consideration discretion is to allow flexibility to approve deserving cases that are not currently covered by the legislation.
It is important to note that this discretion does not conflict with other parts of the Act or Regulations but rather it is a complementary provision that enhances the attainment of the objects of the Act. The H&C decision-making process considers whether a special grant of an exemption from a requirement of the Act is warranted. It invokes sections A25 and A25.1 which make an exceptional measure and does not simply make an alternate means for applying for permanent resident status in Canada.
Due to the H&C consideration relying so much on discretion, what warrants relief will vary depending on the facts and context of each specific case. The immigration officers making H&C determinations must consider and weigh all relevant factors before them. Furthermore, these factors should not be considered in isolation; there must be a global assessment of all the relevant factors.
The following are some considerations when processing H&C applications:
Balance between discretion and consistency
Onus on the applicant
Threshold of proof
Requirement to apply for permanent residence from outside Canada
Hardship and the H&C assessment
Best interests of the child
Former Canadian citizens
De facto family members
Ministerial Instructions and H&C
Dealing with family relationships
Establishment in Canada: in-Canada applications
Ability to establish in Canada: overseas applications
Reconsideration of a negative decision
The following will be questions you may ask with regards to eligibility for H&C consideration. We have included these here in order for you to better understand how applying for H&C consideration works and to resolve any confusion that you may have.
Can my family members become permanent residents while my H&C consideration processes?
Family members that reside in Canada may become permanent residents concurrently with a principal applicant applying for H&C consideration in Canada. In contrast, family members who are outside Canada cannot be processed for permanent resident visas concurrently with the principal applicant in Canada, but can be processed as members of the family class supported by a sponsorship once the applicant becomes a permanent resident.
If I am applying for H&C consideration and I have a toddler that I’d like to bring with me to Canada, will this be taken into consideration?
Bringing a child with you to Canada and having the best interests of the child will definitely be taken into consideration when analyzing your H&C consideration application. Immigration officers are required to be alert and sensitive to the best interests of any child affected by the ultimate decision. In order to demonstrate that they have met this requirement, the immigration officer must identify and define the child’s interests. They must also examine the child’s interests with a great deal of attention.
What if I live alone in my home country and want to be reunited with my extended family in Canada? Would this be considered an H&C consideration?
Yes, your circumstance does fall under the H&C consideration. You would be specifically classified as a de facto family member. De facto family members are people who do not fall within the family class specifications. Yet, their situation of dependence to the sponsor in Canada makes them de facto members of a nuclear family that is either in Canada or is applying to immigrate to Canada.
An example of this would be:
A son, daughter, brother or sister that is left alone in the home country without an immediate family of their own
An elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time.
It is important to note that a consideration an immigration officer might make is to what extent the applicant would have difficulty in meeting financial or emotional needs without the support and assistance of the family unit in Canada.
If you have been refused permanent residence and wish to apply for H&C consideration, we can help you with this process. H&C consideration applications are not an easy process and can become overwhelming if done alone; it is highly recommended that you seek out professional and experienced help before attempting to submit an application. Here at Akrami & Associates, we work and have experience with many different immigration issues. We have helped many of our clients gain permanent residence under the H&C consideration. If you believe that you might be eligible, please feel free to contact Akrami & Associates at our office at 416-477-2545 for more information or if you would like to book a consultation with an immigration professional for more advise.
With Akrami & Associates, there is always a way!