IRPA s. 25
undeniably has provided and continues to provide a solution for
for whom the Act and Regulations constitute barriers to permanent
despite compelling reasons that support their application to come to or
in Canada on a permanent basis. In
fact, H&C has been asked to bear the weight of large expectations,
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
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.
processing of H&C is extremely obscure. Those
who might need overseas H&C consideration for the most part don’t
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
for H&C consideration simply receives a rejection stating that they
meet the Family Class regulations.
Local CIC offices in Canada and the Call Centre do not give
advice on overseas H&C. The lack of clarity in overseas H&C
is a major issue because a significant number of people must use
family reunification (including to reunite children with their parents,
keeping with Canada’s obligations under the Convention on the Rights of
Child). Situations requiring recourse
to overseas H&C include a) excluded family members (R. 117(9)(d)),
children who are found through DNA not to be the biological children,
other de facto family members.
fees are a barrier.
This is especially the case
for the most
vulnerable people, for example, children, single parents, people with
problems or disabilities. As a result,
some of the cases where Canadians would most agree that there should be
humanitarian exemption are those where the applicant cannot afford the
fee. Those who need H&C are often
in an extremely precarious financial situation (for example, women who
fled domestic violence) and their lack of status in Canada may mean
do not have a work permit (and even if they have one, they are unlikely
able to work at a well-paying job). The
Right of Permanent Residence Fee also constitutes a particular hardship
of the process for those without representation. It is
difficult for most applicants to negotiate the process successfully
expert guidance or representation. Many
NGOs and legal clinics provide this kind of support, but it is not
all applicants, even though their situation may be extremely
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
the reasons some applicants are not represented.
CCR members are often
decision-making which often does not appear to reflect a coherent
pattern. Some cases that seem particularly
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.
do not always reflect what we understand to be a humanitarian and
Act refers to « humanitarian and
compassionate considerations ». In
IP5, the test is stated rather as « unusual or undeserved
or « disproportionate hardship ».
One may wonder whether framing the H&C test in this way
narrow the considerations. In some
decisions, however, the test is changed into something that is clearer
harder to meet. For example, applicants
have been turned down because they did not face « excessive
hardship » or « irreparable
Is there a consistent interpretation and
application of the
interest of the child. The CCR
appreciates the efforts made by CIC
to address the specific obligation in the statute to take into account
interests of the child, in line with Canada’s obligations under the
on the Rights of the Child. However,
interpretation and application seem inconsistent and we are concerned
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
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
clear » from the material submitted, despite the clear
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
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,
spoke of the need to look at the benefits to the child of non-removal
as the hardship in removal.
understanding of successful integration.
Integration is a process that
involves a whole range of aspects
human experience, including social, cultural, psychological and
familial aspects. This is broadly
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
Yet, within H&C decision-making
integration too often seems to be measured primarily and even
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
surrounding the applicant, including family, colleagues, friends and
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
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
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
central reason for accepting them is related to their inability to meet
requirements. For example, an applicant
accepted because of her medical condition is then barred because of
inadmissibility; a person accepted because of his statelessness is
because he can’t produce a passport.
IRPA 25 provides for the exemption of « any
criteria ». Why is this not
used? Why is IRPA 25 interpreted as
applying only to the selection decision?
following is a non-exhaustive list of the types of situation of
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).
H&C decision-making should be guided by
principles. More weight should be given
to IRPA 3(3)(f) and the need to comply with HR instruments, notably
respect to obligations regarding:
a. Best interest of the child.
weight should be given to keeping families together/reuniting families).
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:
a process for overseas H&C applications
process should include a form, clear and
guidelines, and training for visa officers, local CIC offices and the
a Gender-based Analysis
Gender-based Analysis of the H&C process
and decisions and
apply the findings in order to ensure gender equality.
more guidance to officers
could and should be given to officers,
their discretion. More situations could
be presented as entailing a favourable presumption.
The notion of integration needs to be framed more broadly.
barriers such as fees (processing and $975),
times, admissibility criteria and lack of access to competent
applicants an opportunity to be heard by staying removal
is consistent application of a policy to
stay removal while
an H&C decision is being made, at least when an H&C application
been pending for some time.
information before making a decision
Ensure there is
consistent application of a policy to ask
information before making a decision if an application is not processed