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Difference between revisions of "Permanent Residence Application Process (18:V)"
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Permanent Residence Application Process (18:V) (view source)
Revision as of 22:05, 17 August 2018
, 22:05, 17 August 2018→E. Humanitarian and Compassionate Applications
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== E. Humanitarian and Compassionate Applications == | == E. Humanitarian and Compassionate Applications == | ||
Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canada under s 25(1) of the IRPA, but they can also be applied for from abroad. This is a highly discretionary category. The test | Section A25(1) of the Immigration and Refugee Protection Act (IRPA) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the Act, based on humanitarian and compassionate (H&C) considerations. | ||
Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canada under s 25(1) of the IRPA, but they can also be applied for from abroad. This is a '''highly discretionary category, and generally only exceptional circumstances will result in an H&C exception'''. The Supreme Court of Canada in ''Kanthasamy v Canada (Citizenship and Immigration)'' 2015 SCC 61 established a broad and comprehensive assessment of all the applicants’ circumstances in an H&C application. The former test, which considers whether the foreign national would face “undue, undeserved, or disproportionate hardship” if they were forced to return to their country of habitual residence or citizenship, should be only treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of "unusual and undeserved or disproportionate hardship" in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the '''equitable''' goals of the provision. | |||
Under the previous test the primary concern is “the best interest of any child” affected by the decision, but an immigration officer will also consider: level of establishment in Canada, family ties in Canada, ties to community, and any other relevant considerations. Review the Program Delivery Instructions on H&C applications (http://www.cic.gc.ca/english/resources/manuals/) for more information. | |||
:'''NOTE:''' In 2010, s 25 of the IRPA was amended, such that “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin. | |||
Subsection 25(1.3) applies only to H&C applications made in Canada. | |||
As of June 29, 2012, refugee claimants who have had their claim denied '''will be subject to a 1-year bar on submission of an H&C application as well as a bar on concurrent applications'''. Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations '''may be removed from Canada before the decision on the application is made'''. | As of June 29, 2012, refugee claimants who have had their claim denied '''will be subject to a 1-year bar on submission of an H&C application as well as a bar on concurrent applications'''. Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations '''may be removed from Canada before the decision on the application is made'''. | ||