Humanitarian and Compassionate Applications Explained

Humanitarian and Compassionate Applications

Mary Keyork
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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.

From a refugee to a permanent resident of Canada

Canadian permanent residency

Mary Keyork
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Ahmad contacted our office first via phone and then booked an in-person consultation. He came to Canada as a visitor ten days ago; being a citizen of Syria, he was working in Croatia as a temporary worker. Ahmad was lucky enough to get his work visa in 2009 and has been working in Croatia since then. Although he loved Syria, he was happy to get the chance to gain international work experience and to be far from politics. Most of his friends were involved in politics in one way or another, and his mother was very worried that Ahmad would too at some point.

Ahmad contacted our office first via phone and then booked an in-person consultation. He came to Canada as a visitor ten days ago; being a citizen of Syria, he was working in Croatia as a temporary worker. Ahmad was lucky enough to get his work visa in 2009 and has been working in Croatia since then. Although he loved Syria, he was happy to get the chance to gain international work experience and to be far from politics. Most of his friends were involved in politics in one way or another, and his mother was very worried that Ahmad would too at some point.

His mother continued to live in Syria, and Ahmad used to visit her as frequently as his work allowed him to. Unfortunately, when the civil war erupted in Syria, the visits were less frequent, and at some point, his mother prohibited him from visiting. In 2014, she had to flee Syria for Lebanon since her life was in danger when the city she resided in was attacked. She had to leave behind everything she and her late husband worked so hard for.

Sadly, in 2015, Ahmad’s mother had a heart attack and passed away without seeing her son for the last time. She was sick, and her health was disorienting; the thought of never seeing her son took a toll on her. She knew he was not able to visit. She was mourning the loss of her home and all the dreams she had, hoping to see the day her son would return to Syria. None of her wishes were set to become for; Ahmad would never return home because there was no home.

When Ahmad heard of his mother’s death, it was one of the worst moments in his life. He lost his father when he was 16, and his mother was everything he had. Ahmad’s parents got married only after the had their son, Ahmad, whom they gave all their love and affection.

Ahmad was lost and confused; while he certainly appreciated the chance to work in Croatia and to gain a valuable experience in his field, he never really intended to stay there. He loved Syria, where his mother and friends lived and were planning to relocate once he saved enough money to open his tech company. Unfortunately, with the recent developments, it did not seem possible. Ahmad was lost as to what options he had now. His work visa in Croatia was about to expire and it was not possible to renew.

In fact, despite living in the country for almost seven years, he did not qualify for citizenship or permanent residence and was asked to leave once it expired. When he tried to negotiate with his employer, he was told that even though they liked him, there was nothing they could do. They already hired new staff as per the Croatian employment law regulations on foreign workers. All that his soon-to-be former employer could have provided him with was a recommendation letter and best wishes.

Apparently, these were not enough, especially given the fact that Ahmad lost his Syrian passport and home, he had nowhere to go and no one to turn to. Ahmad tried his best to keep in touch with his Syrian friends, and the news from his country was devastating. Everyone he knew was trying to survive; most left their cities and became refugees, without hope and home, just praying that they would survive long enough to see their home again.

Sitting on the floor of his small rental studio in Zagreb, Ahmad felt lonely and desperate. Where could he go? He could not justify going back to Syria, where the death and sufferings reigned. Millions of women and children were fleeing their homes, becoming refugees and welcomed in very few countries. The pain Ahmad felt was indescribable; he was hurting for everyone that were affected by the Syrian civil war. He was hurting because he was alone. The war in Syria might never end, and even if it did, the country would never be the same.

His dreams and plans for the future came crashing down on him. He remembered how he dreamt about travelling the world; places he would take his mother and Canada among the first countries he would want to travel to. After all, he still had memories of his childhood when a family friend who was studying in Canada visited them and brought them maple syrup candies. Those quickly became Ahmad’s favorite, and he was always looking forward to his visits.

The next day, Ahmad started gathering documents to apply to Canada for a visa. He did not know what life had in store for him since he did not have a home to go back to, but he knew for certain that he had to try at least and make one of his and his late mother’s dreams come true. He heard that Canada was accepting refugees from Syria, but he was not sure how the mechanism worked exactly. In fact, he just wanted to visit and see the country. Fortunately for Ahmad, his visa was approved and he boarded the plane to Canada.

After arriving, he realized that Canada was even more beautiful than he imagined, and for a second he thought about how would that feel to live here. It seemed that Ahmad found the long-lost hope. He decided to inquire about the refugee programs and eventually contacted our office. He did not know whether he would qualify. After all, he didn’t want to think of himself as a refugee.

It was breaking his heart to think that the home he once knew was long gone and now he was left to the mercy of an international community. Ahmad was advised that for his refugee claim to be approved, there were certain things to be proved. His life was certainly in danger, which was the case. As a Christian, he was victim of discrimination, but he never acted on it since Syria was the only home he knew. His mother was a non-practicing Muslim, his father was Christian, and Ahmad was raised as a Christian.

The Syrian government was not able to provide adequate protection to their citizens, especially Christians, and Ahmad would not be able to seek refuge anywhere in Syria. His family residence was destroyed. Ahmad is a man in his early thirties and had nothing to go back to; no family, no house, nothing. If he were to be sent back to Syria, he would have died or would have been kidnapped sooner or later. Was Ahmad afraid of death? Certainly, but he knew that he was left at the mercy of the Canadian Judicial System, and there was nothing he could do. He only explained his genuine fear to go back to Syria because the country he once knew was long gone. However, Ahmad was ready to accept his fate, should he be sent back to Syria. Croatia was not an option and, at the refugee hearing, Ahmad truthfully answered all the questions.

His refugee hearing was an emotional one; he reminisced about his life in Syria with his parents and their home. No one chooses to lose everything they love and believe in; no one chooses to never go back home. He never thought that he would become a refugee, seeking rescue from pain, death, and suffering.

Three weeks later, Ahmad received a phone call from his lawyer that his refugee claim was approved, and soon he would be able to apply for a Canadian permanent residency. There was hope to build a new life in a safe and respectful environment. Although he will never be able to relive the life he had in Syria, he has a chance to live a life he would be forever grateful for in Canada that has become a second home to him now.

One girl’s long way home

permanent residence in Canada

Mary Keyork
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    One girl’s long way home – Permanent residence granted on humanitarian and compassionate grounds

    Miriam first contacted us on a sunny and crispy Montreal morning regarding obtaining permanent residency based on humanitarian and compassionate grounds; she sounded anxious and was looking for answers that would essentially determine her personal and professional life.

    A young professional in her mid-twenties, Miriam lived most of her adult life in Canada; however, she had no real status in Canada and had a complicated life story.

    She was born in the family of foreign diplomats in Ottawa. She was born in Canada, but she was not a Canadian citizen!

    Her parents, people of Belarus, were stationed in Canada for five years. During those five years, they had Miriam, who was completely immersed in Canadian culture and thought of herself as a Canadian.

    Unfortunately, despite being born in Canada and having a Canadian birth certificate, Miriam was not a Canadian in the eyes of the law. As she was born in the family of foreign diplomats during posting, she, therefore, was exempted from claiming Canadian citizenship.

    Of course, at the time, her parents were not aware of this existing rule and only did not give enough thought to how Miriam would feel when they eventually would have to leave Canada.

    While her parents were grateful for the opportunity to get accustomed with Canada and made lifelong friends during that period of their career, they knew that Canada was not their home. Unlike her parents, Miriam didn’t know any other home than Canada.

    It was heartbreaking for her parents to watch their little girl cry during the whole flight back to Belarus, but there was little they could do.

    As a consolation, Miriam’s mother packed a small bag of “Smarties” candies, Miriam’s favorite Canadian snack, and hoped that it would help her daughter’s sadness caused by leaving Canada.

    After returning to Belarus, the family stayed there for a year and then eventually left on another diplomatic mission. Sadly for Miriam, she never quite assimilated in Belarus during that one year, and never felt home in any of the countries that her parents’ career took them to.

    Soon after turning 18, Miriam decided to move to Canada and get her education here. Her parents were back to Belarus and settled, and while they were sad to let their daughter go, they knew she should follow her dreams.

    Canada had always been on Miriam’s mind; she would always read about Canadian news, watch Canadian TV shows, and was always up to date with what was going on in Canada.
    On a beautiful summer day and with just two bags, Miriam arrived in the beautiful city of Montreal ready to build her life in Canada. She was excited to discover the French heritage of Canada and to study at the University of her choice.

    It is safe to say that Miriam thoroughly enjoyed her student experience in Montreal, made friends with locals and discovered how much she loved smoked meat. Four years of intense studies in the marketing field flew by, and Miriam was ready to jump-start her career.

    Just like millions of young Canadians, Miriam started the challenging but eventually rewarding process of a job hunt and finally landed a great entry level position in one of the most reputable marketing agencies in Montreal.

    In the meantime, she also met Andrew, a graphic designer whose studio was in the same building as her marketing agency. Miriam and Andrew made it a ritual to get lunch together every Tuesday and Thursday, and shortly after they both realized that they had romantic feelings for each other.

    Canada had become everything Miriam had ever wanted; she had a job she adored, a man with whom Miriam was falling in love more and more with every passing day, great friends and the never-ending feeling that she was home.

    During one of the conversations, Miriam was telling Andrew how she dreamt of the day she would acquire Canadian citizenship and would become a proud owner of a Canadian passport.

    Naturally curious, she Googled the process of applying for citizenship to get some idea as to what documents she would need for the application and quickly realized that despite being born in Canada and her Canadian birth certificate, it did not entitle her to Canadian citizenship because she was born in the family of foreign diplomats during posting.

    Miriam just froze, and the reality hit her; she was not Canadian, and she was out of status all these years.

    • What is going to happen to her?
    • Would she be asked to leave the country eventually?
    • What about her job?
    • What about her relationship with Andrew?

    They sat there, staring at each, both anxious and not knowing what the future held for them. Andrew cared about Miriam, but he was nowhere near ready to ask her to marry him. In fact, they both wanted to date for a while and get to know each other, travel the world and focus on their careers before committing to starting a family.

    Besides, that was not how Miriam would want her relationship to progress; being proposed out of fear that she would be asked to leave Canada eventually? Being proposed out of necessity?

    No, no, no; there should be some other way. After all, she was so established in Canada, with an extensive network of friends and coworkers, with her employer being euphoric with her performance, with Andrew.

    Right then and there, Miriam knew she had to contact an immigration lawyer and find out what her options would be. After all, all these years she lived in Canada should count for something. That was what Miriam hoped and prayed for when she was getting ready for the consultation with an immigration lawyer.

    Thankfully, there is a possibility to apply for permanent residence from within Canada based on an establishment in Canada as well as compelling humanitarian and compassionate grounds. It’s an exception that allows people who are out of status in Canada but who are so established that removing them out of the country would cause them.

    Miriam gathered all the documents she was asked to provide to prepare her application and waited impatiently for the answer.

    Weeks and months went by; Miriam kept working in the marketing agency and her relationship with Andrew was progressing. They celebrated Canada Day together, took trips to Quebec City, Mont Tremblant, and explored small towns in the province of Quebec.

    Some days she would catch herself thinking about how much she would miss Canada if eventually she would be asked to leave the country. What scared her even more – where would she go?

    Even the thought of that made her sick; she missed her parents and would want to visit them whenever possible, but Belarus was never her home. Leaving Canada would have meant leaving a vital part of herself; leaving Canada would only mean losing herself.

    In early November Miriam received an email from her lawyer; she was excited and ecstatic. The title of the email already revealed the content – “Wonderful news!” she read and quickly proceeded to open the email. Her application was approved!

    Miriam’s voice was shaking because of how excited she was when she finally managed to call Andrew to tell him that Canada officially became her home! It was a long way home, filled with uncertainty and anxiousness, but she finally reached her destination.

    Miriam knows that her story is unique. How many foreign diplomats based in Canada have children while being posted? How many of these kids make Canada their home? Miriam wonders.

    What Do I Do If My Humanitarian And Compassionate Application Has Been Refused?

    Humanitarian & Compassionate Application refusal: What can I do?

    I was refused applied for permanent residence in 2007 under the humanitarian and compassionate category in applied for permanent residence in 2007 under the humanitarian and compassionate category in Canada. I have been in Canada for 10 years, I have been working and paying taxes, and I have two Canadian-born children. Yesterday, I received a letter refusing my application for permanent residence which took more than five years for them to consider. I do not know what I should do now and I am very worried about returning to China. What are my options? Will I be deported?

    You will not be deported from Canada until you have completed the Pre-removal Risk Assessment (PRRA) and you have a valid travel document to return to China. Before that happens, you need to decide whether to challenge the decision that has just been made or to re-apply on humanitarian grounds. As you have Canadian children and have been in Canada for a significant period of time, you may have a strong case. Lately, CIC has decided that it will not advise applicants when the officer is ready to make a decision, so it is very important for all applicants to constantly update their files. As you now have a refusal, you only have 15 days to apply to the Federal Court for Leave and for Judicial Review, so you need to decide whether this option is viable as soon as possible. You could also re-apply for consideration on humanitarian grounds, providing detailed submissions and a large number of documents as evidence to support your application. As new applications are being considered much faster now, there may be sufficient time. You must obtain proper advice from an immigration lawyer immediately to determine the best strategy for you.

    Can I Make A Second Refugee Claim?

    How can I make a second refugee claim?

    I came to Canada from Guangdong province with my wife and son, and we claimed refugee status in Canada. Since we arrived in Canada, we have had a second child, a daughter. Our refugee claim was refused, but we do not want to return to China because we have had a second child and we are worried that we will have trouble due to China’s one-child policy. Can we make a second refugee claim?

    You cannot make a second refugee claim. However, you may be able to make an application under the Pre-Removal Risk Assessment if you remain in Canada for at least 12 months from the date your refugee claim was refused. If CBSA removes you before that time, you will not be entitled to PRRA. If less than 12 months have passed since the refusal of your refugee claim, you can make an application on humanitarian grounds. Normally, these applications are also barred until at least 12 months have passed. However, you may make an application if the best interests of children are at stake. You would need to make your humanitarian application fairly quickly, as you may be removed from Canada before the application being considered by an officer. Also, having a second child would not necessarily result in approval, as the officer would consider all the humanitarian factors and the particular evidence provided. You should obtain proper detailed legal advice immediately.

    I Have A Pending Humanitarian And Compassionate Application But I Was Asked To Leave Canada In 2 Weeks, What Can I Do?

    How can I get an extension for a humanitarian and compassionate application?

    My husband has been asked to leave Canada within two weeks, after living and working in Canada for ten years. He came to Canada as a refugee claimant, was refused, and then stayed on to work. He applied for humanitarian consideration about three years ago, and recently received a refusal of this application. I had applied to sponsor him last year, but the application is still in process. We have two young children, but the immigration officer is still insisting that he leave Canada even though the sponsorship application has not been completed yet.

    What can we do?.

    Many families are currently experiencing the same situation right now. As your husband has no legal right to remain in Canada, they will continue to remove him from Canada unless you either

    1. Convince the removals officer to defer removal until the spousal sponsorship is complete or;

    2. You obtain a stay from the Federal Court of Canada allowing him to remain in Canada until the sponsorship is finalized.

    In my opinion, the fact that you filed your sponsorship a year ago, and you have a young child, are key elements to winning in the Federal Court. The best interests of the child must be considered by immigration and removals officers, and it is not clear that this has been done. You have very little time, and you should retain a lawyer immediately to start legal proceedings if your husband wishes to remain in Canada until the spousal sponsorship is completed. Alternatively, should your husband choose to leave Canada, you can sponsor him to return to Canada (you would need to start a new overseas sponsorship application). However, keep in mind that in addition to obtaining approval as a spouse, he will also need to apply for Authority to Return to Canada (ARC) which will require the visa officer to balance the factors leading to his removal from Canada and to decide whether to give him permission to return.

    Are We Eligible For The Voluntary Removals Process?

    My family and I came to Canada three years ago and made refugee claims in Toronto. We did not appear for our hearing at the IRB, as we were not advised about the hearing date by our immigration consultant. Now, we would like to leave Canada and would like to know if we are eligible for the voluntary removals process? If so, how should we apply?

    Eligible applicants who have had their refugee claims refused by the IRB may be able to receive a payment of up to $2,000 if they agree to leave Canada. This is called the Assisted Voluntary Return and Reintegration Pilot Program. In order to be eligible, however, you had to have received a negative determination by a member of the IRB. In your case, as you did not show up for the hearing and likely had your refugee claim declared abandoned, you would not be eligible for the program (unless, for some reason, your file is still open). Any person whose claim was either abandoned or withdrawn will not be eligible. In addition, it is not clear whether you have notified Canada Immigration of your current address since you failed to appear for your hearing. It would be wise to obtain proper legal advice as soon as possible to accurately assess your current immigration situation and formulate a strategy.