ISSUES for H&C ROUNDTABLE, 27-28 March 2006
A. Major concerns regarding humanitarian and compassionate consideration (H&C) as it works currently
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.
CONCERNS RELATED TO PROCESS
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.
CONCERNS RELATED TO DECISION-MAKING
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.
CONCERNS RELATING TO POLICY
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
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?
B. Types of situation of concern in relation to H&C
The following is a non-exhaustive list of the types of situation of particular concern to the CCR where people turn to H&C.
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).
C. General recommendations
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:
a. Victims of trafficking
b. Stateless persons
c. Nationals of moratoria countries (should be able to apply for PR after 3 years in Canada).
d. Victims of domestic violence
e. Long-term de facto residents
Policy changes should be introduced to:
f. Eliminate R. 117(9)(d) (Excluded family member). g. Grant child refugees in Canada the right to include their parents and siblings in their landing application. h. Recognize as family members non-biological children who are an integral part of a family. i. Implement the refugee appeal.
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.