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The humanitarian and compassionate, or H&C, category, exists for foreign nationals that are not eligible to apply for permanent residence under other categories.
This category gives immigration officers some flexibility in exceptional situations where a family or individual does not qualify for an existing immigration category but extenuating factors exist that could warrant the granting of permanent resident (“PR”) status.
This category is truly for exceptional situations and is not for everyone who simply does not fit into another category.
What are the H&C factors?
Officers do have discretion under this category; however, there are a set of factors that they review to support their decision. Overall, officers are looking at what would happen to the applicant, and any children involved if the H&C application were refused.
The list below represents some of these factors:
• Place of application (inside or outside of Canada) – generally, foreign nationals must apply for PR from outside of Canada unless they qualify for an exemption or category that allows for in-Canada applications. For example, some spouses or common-law partners can be sponsored from inside Canada allowing them to remain with their family while their application processes. For H&C applicants that are inside Canada, officers will look at the impact on that person, and any children involved if they had to apply for PR from outside of Canada.
• Factors relating to a person’s stay in Canada – if the applicant is presently in Canada, officers will look at the circumstances of their stay. If a person does not have valid status but has been unable to leave Canada because of factors beyond their control, it may be seen as more favorable than if a person was able to leave Canada but simply refused. For example, if a person’s home country refused to accept them and they could not return, this would be out of their control. Of course, the specific reasons why a person cannot return to their home country will be considered.
• An establishment in Canada or Ability to Establish – if the applicant is present in Canada, or previously spent time here, officers will consider how established and integrated they have become. Officers will look at factors like length of time in Canada, employment history, community involvement and integration, financial stability and whether there is a history of obeying Canada’s laws and cooperating with immigration authorities. Similarly, if an applicant is outside of Canada, officers will look at these factors in their country of residence to understand if they have the ability to establish themselves in Canada.
• Best interests of a child – officers have to look at the best interests of any child directly affected by the decision. This can apply to children inside or outside of Canada, whether they are Canadian citizens or foreign nationals. Interests of children are taken very seriously and, sometimes, even if it is decided that an adult would not face hardship if they had to leave the country, an application might be granted if a child would face hardship based on a negative decision. This assessment not only applies to parents but can also be extended to relatives or other individuals that have a significant presence in a child’s life. The onus is on the applicant to demonstrate the relationship and any impact on the child if PR status is refused. This assessment applies to children that are 18 or under when an application is filed.
• Statelessness – people can become stateless from discriminatory practices, inheritance, administrative and social barriers or renunciation. If a person is stateless and they have successfully established in Canada, it may be looked at positively in the overall application. As with other factors, it is up to the applicant to demonstrate that they are stateless.
These factors are not looked at in isolation. Instead, immigration officers take a holistic view of an applicant’s life to determine, overall, if it would create hardship for the applicant if they were not able to remain in, or move to, Canada.
Who Cannot Apply
There are some individuals that cannot apply under H&C grounds, including:
• Foreign nationals asking for temporary status. H&C grounds are only applied to permanent residence applications;
• Foreign nationals asking for an assessment based on refugee ground risk factors ((i.e. persecution, risk to life, etc.) or who have a pending refugee claim;
• Foreign nationals who have had a negative IRB decision within the last year. Exceptions to this apply if any children under 18 will be impacted by the decision, or if the applicant or their dependents have life-threatening medical conditions that cannot be treated in their home country.
Designated foreign nationals are restricted from making an H&C application until five years have passed since:
• They became a designated foreign national;
• The IRB made a negative and final decision on a refugee claim; and/or
• They received a negative decision on a Pre-Removal Risk Assessment.
If you have established yourself in Canada, and do not qualify for permanent residence under the economic, family or refugee classes, you may be eligible to apply on humanitarian and compassionate grounds.