IRPA s. 25
undeniably has provided and continues to provide a solution for
numerous people
for whom the Act and Regulations constitute barriers to permanent
residence,
despite compelling reasons that support their application to come to or
remain
in Canada on a permanent basis. In
fact, H&C has been asked to bear the weight of large expectations,
because
of gaps in many immigration policies.
These expectations only heighten the concerns felt by the
members of the
Canadian Council for Refugees over some shortcomings in the current
functioning
of H&C.
1. Extremely slow processing. People routinely wait years for a decision on an H&C application. Slow processing is neither fair (particularly given the significant fees paid by the applicant) nor is it effective (people who need a humanitarian exemption may be deprived of it because they are forced to leave Canada before a decision is rendered, and/or they spend spend years in a vulnerable state of legal limbo). There is considerable inconsistency in whether removals are stayed for persons with a pending H&C application pending. The slow processing can also mean that submissions made on application are no longer up-to-date when a decision is rendered. While in many cases officers will request an update before making a decision, this is not always done.
2.
Overseas
processing of H&C is extremely obscure. Those
who might need overseas H&C consideration for the most part don’t
know how
to apply. There is no form on which to
apply. Visa offices do not seem to
handle requests consistently. In some
cases a person applying using e.g. a Family Class form but including a
request
for H&C consideration simply receives a rejection stating that they
do not
meet the Family Class regulations.
Local CIC offices in Canada and the Call Centre do not give
consistent
advice on overseas H&C. The lack of clarity in overseas H&C
processing
is a major issue because a significant number of people must use
H&C for
family reunification (including to reunite children with their parents,
in
keeping with Canada’s obligations under the Convention on the Rights of
the
Child). Situations requiring recourse
to overseas H&C include a) excluded family members (R. 117(9)(d)),
b)
children who are found through DNA not to be the biological children,
and c)
other de facto family members.
3.
Processing
fees are a barrier.
This is especially the case
for the most
vulnerable people, for example, children, single parents, people with
medical
problems or disabilities. As a result,
some of the cases where Canadians would most agree that there should be
a
humanitarian exemption are those where the applicant cannot afford the
H&C
fee. Those who need H&C are often
in an extremely precarious financial situation (for example, women who
have
fled domestic violence) and their lack of status in Canada may mean
that they
do not have a work permit (and even if they have one, they are unlikely
to be
able to work at a well-paying job). The
Right of Permanent Residence Fee also constitutes a particular hardship
in many
H&C cases.
4.
Complexity
of the process for those without representation. It is
difficult for most applicants to negotiate the process successfully
without
expert guidance or representation. Many
NGOs and legal clinics provide this kind of support, but it is not
available to
all applicants, even though their situation may be extremely
compelling, since
there is little funding available for this service.
It would be interesting to study the impact of representation
(including different types of representation) on success of
applications, and
the reasons some applicants are not represented.
5.
Inconsistent
decision-making.
CCR members are often
confused by
decision-making which often does not appear to reflect a coherent
pattern. Some cases that seem particularly
compelling
are refused, while others that seemed similar or less compelling are
accepted. There appears to be
inconsistency between regions and from decision-maker to decision-maker.
6.
Decisions
do not always reflect what we understand to be a humanitarian and
compassionate
approach. The
Act refers to « humanitarian and
compassionate considerations ». In
IP5, the test is stated rather as « unusual or undeserved
hardship »
or « disproportionate hardship ».
One may wonder whether framing the H&C test in this way
tends to
narrow the considerations. In some
decisions, however, the test is changed into something that is clearer
much
harder to meet. For example, applicants
have been turned down because they did not face « excessive
hardship » or « irreparable
harm ».
Is there a consistent interpretation and
application of the
H&C test?
7.
Best
interest of the child. The CCR
appreciates the efforts made by CIC
to address the specific obligation in the statute to take into account
the best
interests of the child, in line with Canada’s obligations under the
Convention
on the Rights of the Child. However,
interpretation and application seem inconsistent and we are concerned
by
tendencies to take a restrictive interpretation. IP5,
5.19 states the obligation to be alert and sensitive to the
interests of children, but immediately narrows the obligation in ways
that do
not seem consistent with Canada’s human rights obligations. The
officer is told there is no obligation
if the issue of the children’s interests is not
« sufficiently
clear » from the material submitted, despite the clear
Convention
obligation, reinforced by IRPA 3(3)(f) calling for the Act to be
applied in a
manner that complies with international human rights instruments.
The manual also emphasizes that the
interests of the child do not outweigh all other factors, without
mentioning
the Convention obligation to give « primary
consideration » to the
best interests of the child. IP5 also
fails to adequately reflect the Federal Court’s judgment in Hawthorne,
which
spoke of the need to look at the benefits to the child of non-removal
as well
as the hardship in removal.
8.
Narrow
understanding of successful integration.
Integration is a process that
involves a whole range of aspects
of the
human experience, including social, cultural, psychological and
familial aspects. This is broadly
understood within
Citizenship and Immigration Canada, a department that has developed
considerable expertise in the topic of integration.
Through the Metropolis initiative, researchers have added to our
understanding of the complexity and multifaceted nature of
integration.
Yet, within H&C decision-making
integration too often seems to be measured primarily and even
exclusively in
economic terms. The broader
understanding of integration needs to be better reflected.
It should also be noted that denials of
H&C can have a strong negative impact on the integration of many
people
surrounding the applicant, including family, colleagues, friends and
community.
9.
Use
of H&C as a catch all for inadequate policies. In
the last several years in particular, H&C is again and again
offered as the
solution to problematic policies. For
example, child refugees cannot include their parents and siblings on
their
permanent residence applications: the solution is H&C.
Victims of trafficking face removal from
Canada despite being victims of a crime: the solution is H&C. Innocent family members are caught in the
excluded family member rule: the solution is H&C.
Using H&C to fill the gaps in blunt policies is not
working
well.
10.
Barriers to
landing for those
accepted in principle. The various
requirements in the
Act, such as medical admissibility and identity document requirements,
frequently block people whose application has been approved in
principle. This is particularly perverse
when the
central reason for accepting them is related to their inability to meet
the
requirements. For example, an applicant
accepted because of her medical condition is then barred because of
medical
inadmissibility; a person accepted because of his statelessness is
barred
because he can’t produce a passport.
IRPA 25 provides for the exemption of « any
applicable
criteria ». Why is this not
better
used? Why is IRPA 25 interpreted as
applying only to the selection decision?
The
following is a non-exhaustive list of the types of situation of
particular
concern to the CCR where people turn to H&C.
In Canada
1. Refugees who should have been granted protection but who have been refused status due to flaws in the determination system.
2. Survivors of trafficking.
3. Persons with family with refugee or permanent status in Canada (including parents and/or siblings of refugee children recognized in Canada).
4. Stateless persons.
5. Persons (often women) who were under a family sponsorship but who have left their spouse due to domestic violence.
6. Persons whose removal from Canada would involve a serious rights violation (e.g. persons with a serious medical condition for which treatment is available in Canada but not in the country to which they would be removed).
7. Persons from countries to which Canada generally does not deport because of a situation of generalized risk (moratorium countries).
8. Persons who have been continuously in Canada for several years.
9. Persons who have integrated in Canada, where integration is viewed not from a narrow economic perspective but taking into consideration social, cultural and familial integration.
10. Persons who have worked for some time on temporary worker programs, notably as seasonal agricultural workers.
11. Excluded family members (R. 117(9)(d)).
12. Non-biological children who are separated from their only family who is in Canada.
13. Parents and siblings of child refugees in Canada.
14. Other family members of persons in Canada where there are specific humanitarian concerns (for example, because they are in – or facing removal to – a situation of generalized risk).
1.
Human
rights approach.
H&C decision-making should be guided by
human rights
principles. More weight should be given
to IRPA 3(3)(f) and the need to comply with HR instruments, notably
with
respect to obligations regarding:
a. Best interest of the child.
b.
Family
unity. (Greater
weight should be given to keeping families together/reuniting families).
2.
Develop
policy solutions
Situations that reflect a gap in policy should be addressed through a policy solution. This could include greater use of regulatory classes to respond to the situation of, for example:
Policy changes should be introduced to:
3.
Introduce
a process for overseas H&C applications
An overseas
process should include a form, clear and
accessible
guidelines, and training for visa officers, local CIC offices and the
call
centres.
4.
Apply
a Gender-based Analysis
Conduct a
Gender-based Analysis of the H&C process
and decisions and
apply the findings in order to ensure gender equality.
5.
Give
more guidance to officers
More guidance
could and should be given to officers,
without fettering
their discretion. More situations could
be presented as entailing a favourable presumption.
The notion of integration needs to be framed more broadly.
6.
Address
processing barriers
Eliminate
barriers such as fees (processing and $975),
long processing
times, admissibility criteria and lack of access to competent
representation.
7.
Provide
applicants an opportunity to be heard by staying removal
Ensure there
is consistent application of a policy to
stay removal while
an H&C decision is being made, at least when an H&C application
has
been pending for some time.
8.
Update
information before making a decision
Ensure there is
consistent application of a policy to ask
for updated
information before making a decision if an application is not processed
in a
timely manner.