2. Access to H&C

Nov 2019
Whereas:
  1. In the midst of the largest refugee crisis in history, conditions in countries of origin around the world are ever fluid and can change within a matter of days; 
  2. Conditions in countries of origin which may not amount to persecution may still place individuals in severe hardship (for example, climate-related catastrophes); 
  3. H&C applications are the only applications for permanent residence in Canada in which the best interests of the child must be taken into account;
  4. Canada has a legal obligation under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights to provide effective remedies to ensure the respect of these rights;
  5. Persons who may face severe hardships in their countries of origin are barred from accessing H&C applications for one year following the final determination of their refugee claim; and
  6. Delays in processing of H&C applications are leading to more people, including families and children, being removed from Canada prior to consideration of the best interests of the child and other humanitarian and compassionate factors raised by their cases;
Therefore be it resolved:

that the CCR call for people seeking protection in Canada to have access to humanitarian and compassionate considerations at any stage of their legal process following arrival in Canada, and in any event prior to removal.

Working Group:

4. Access to an appeal on humanitarian grounds (criminality cases)

May 2011
Whereas:
  1. Permanent residents who are found to be inadmissible on grounds of serious criminality or organized crime are denied access to the Immigration Appeal Division;
  2. Convention refugees in Canada can be removed for reasons of serious criminality if there is a danger opinion against them;
Therefore be it resolved:

That the CCR call for refugees and permanent residents facing removal on the basis of serious criminality or organized crime to have access to the IAD for consideration of humanitarian and compassionate factors.

Working Group:

6. Decision-making on H&C applications

Nov 2010
Whereas:
  1. H&C applications are the only applications for permanent residence in Canada in which the best interests of the child and the right to family unity are taken into account;
  2. Canada has legal obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights to provide effective remedies to ensure the respect of these rights;
  3. Delays in processing of H&C applications are leading to more and more people being removed from Canada prior to the examination of pending H&C applications;
  4. Under Bill C-11, it is the government’s intention to remove failed claimants very quickly following their refusal;
  5. Bill C-11 provides for fixed timelines for every stage of the refugee process;
Therefore be it resolved:

That the CCR advocate for a commitment from CIC to rule on H&C applications within a fixed time frame of four months from the time of filing of the H&C application or, if a removal date is set before that, prior to the scheduled removal date.

Working Group:

12. Concurrent processing of family members of persons accepted on H&C grounds

May 2009
Whereas:
  1. Concurrent processing of family members of persons accepted on H&C grounds in Canada was abolished in 2004;
  2. This has resulted in a significant delay in family reunification for persons accepted on H&C grounds;
  3. Many of these people have compelling humanitarian and compassionate considerations and/or were wrongly refused refugee status;
Therefore be it resolved:

That the CCR recommend an amendment of the Regulations to restore provision for concurrent processing of family members of persons accepted on H&C grounds.

Working Group:

4. Priority processing for H&C applications involving best interests of the child

Nov 2008
Whereas:
  1. Canada is signatory to the Convention on the Rights of the Child;
  2. Timely family reunification and a full and timely assessment of a child’s best interest are fundamental elements of Canada’s obligations under the said Convention;
  3. In February 2005, the Minister of Citizenship and Immigration implemented a program to reduce the processing times of sponsorships of spouses living abroad and to prevent, where possible, the separation of spouses in Canada;
  4. A child’s interests and rights are of equal or greater concern;
Therefore be it resolved:

That the CCR advocate in favour of a policy providing that:

  1. A humanitarian and compassionate application involving the best interests of any child facing removal, or whose parents face removal, receive a full and proper assessment prior to potential removal from Canada;
  2. Applications for permanent residence based on humanitarian and compassionate grounds, made either inland or abroad, that invoke the best interests of a child living abroad be processed in priority; an accelerated priority should be given to those applications which invoke risk concerns to the child living abroad.
Working Group:

11. H&C and medical inadmissibility

Nov 2005
Whereas:
  1. Section 25(1) of IRPA grants the Minister broad discretionary authority to exempt an inadmissible person from any provisions of the Act or Regulations, if there are humanitarian and compassionate reasons for doing so;
  2. The Regulations severely restrict this broad discretionary authority by requiring persons who are approved in principle for landing on H&C grounds to meet all admissibility requirements in order to be landed, including medical admissibility;
  3. A person who receives a positive H&C decision and who is found medically inadmissible is refused landing and may face removal from Canada to a place where their life is at risk, or, if granted a temporary resident permit (TRP) for three years, may then be denied provincial health insurance coverage during the three year TRP period and thus face a risk to their life due to inability to access adequate medical care in Canada;
  4. Applying the criterion of medical inadmissibility to a person who has been granted approval in principle on H&C grounds constitutes discrimination contrary to section 15 of the Charter of Rights and Freedoms and is an improper fettering of the Minister’s discretion under section 25(1) of IRPA;
Therefore be it resolved:

That the CCR request an amendment to the Regulations requiring that a person who is granted approval in principle for landing on H&C grounds be exempt from medical admissibility criteria and be landed without delay.

Working Group:

15. H&C decisions and Canadian values

Nov 2004
Whereas:
  1. There is considerable discontent with the current decision-making process with regards to humanitarian and compassionate considerations inside Canada and the lack of respect for fundamental family rights or significant establishment in Canada;
  2. There is great concern that the criteria of the best interest of the child is not being applied in a liberal and just fashion in humanitarian decisions by CIC decision-makers.
Therefore be it resolved:

That the CCR request that:

  1. The criteria for deciding on humanitarian and compassionate requests in the IP-5 Manual be modified to read “unusual and undeserved hardship” with the addition of “or sufficient family ties.”
  2. The departmental police and guidelines be modified so that, in the absence of significant countervailing factors, the following categories will benefit from a favourable presumption in analysis of humanitarian applications:
    a) Married couples with a valid relationship will not be separated by removal during the processing of the permanent residence.
    b) Applicants with Canadian children will be generally accepted for permanent residence in Canada.
    c) Applicants with over five years in Canada of continuous presence are generally allowed to stay in Canada.
    d) Applicants with children who have become culturally acclimated to Canada and have over three years Canadian schooling should generally be accepted for residence.> e) Applicants whose removal would create significant disruption to a Canadian employer or to other Canadian employees should warrant humanitarian considerations.
    f) Torture or rape victims should not normally be sent back to the country where they suffered rape or torture. Serious risk of re-traumatisation must be an important humanitarian concern.
Working Group:

12. Statelessness

Nov 2003
Whereas:
  1. Stateless people are in a vulnerable situation because they have no protection from a state;
  2. IRPA does not specify stateless persons as a group needing protection or eligible for landing on humanitarian and compassionate grounds.
Therefore be it resolved:

That the CCR:

  1. Strongly urge the Minister to amend IRPA to include statelessness as a ground for protection (both in Canada and for resettlement).
  2. In the alternative, use the authority of subsection 25(1) to establish "protection of stateless persons" as a public policy category for permanent residence and amend the Immigration and Refugee Protection Regulations to include statelessness as a ground for resettlement to Canada.
  3. As an interim measure urge CIC to amend the Immigration Manual, Chapter IP5, to include statelessness as a factor for landing in H&C applications. ID requirements and establishment requirements should be waived in view of the special hardships faced by stateless persons.

14. Risk Assessment - Timing and Forum

Nov 1995
Whereas:
  1. Citizenship and Immigration Canada is currently studying the process by which humanitarian and compassionate reviews are done;
  2. CIC is also studying the process for assessing the risks a rejected refugee claimant may face should she/he be removed from Canada;
  3. One proposal which is receiving serious consideration by CIC is to have CIC officials make decisions about claimants' refugee claims, humanitarian and compassionate applications and risk assessments prior to the matter being referred to the IRB;
Therefore be it resolved:

that the CCR:

  1. Oppose refugee claims being determined at any stage by way of administrative process;
  2. Support the proposition that refugee claims should be determined by the IRB, an independent quasi-judicial body;
  3. Support the proposition that decisions about humanitarian and compassionate claims and risk assessment should be made after a determination of a person's refugee claim;
  4. Support the proposition that the IRB is the best available body to make the initial decision about the risks a person may face should that person be removed from Canada or to deal with a re-opening for changes of conditions.
Working Group: