Canada’s humanitarian and compassionate policy has just been completely rewritten in a new chapter in Canada’s immigration manual.
On April 1 our immigration department published its newest version of chapter “IP-5,” which instructs immigration officers and officials how to assess and dispose of applications made for permanent residence on “H&C” grounds.
The new guidelines incorporate recent legislative amendments passed in June 2010, case law from the Federal Court, and policy considerations formulated by the minister and his officials. The “H&C” application is considered the application of last resort, the one a foreigner makes when they can’t meet all the requirements of any other immigration categories.
The law requires our immigration minister to decide such cases. However, this power is delegated to, and exercised by, front-line immigration officers except in cases involving serious grounds of inadmissibility. One might conclude that this provision allows foreigners to circumvent our usual immigration requirements. However, that is not the case at all.
Our immigration manual describes the need for such a provision as follows:
“Discretion is a valuable element of Canada’s immigration program…The purpose of the H&C discretion is to allow flexibility to approve deserving cases not covered by the legislation….Use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act.”
To succeed, an applicant must prove that their inability to meet a particular requirement of our legislation will cause them “unusual, undeserved or disproportionate hardship.”
For example, there is a general requirement in our legislation that an application for permanent residence must be launched and approved outside of Canada before the person settles here. However, there are many foreigners who have been in Canada without lawful status for many years and who have become fully established and integrated here. Leaving their lives here in order to wait outside of Canada for years to finalize an application for permanent residence could imperil their livelihood and put an undue strain on their dependents. Accordingly, they will often make an H&C application from within Canada to avoid the hardship of applying from abroad.
Persons with criminal records (usually minor) may seek an exemption from the requirement that they be completely crime-free. Nannies who work in Canada under our Live-in Caregiver Program who could not complete their two years of service within the allotted time can ask for an exemption from this requirement. Young people who have been abandoned or orphaned here can similarly ask for an exemption from the requirement that they be able to support themselves.
Under previous legislation, the minister could consider any “hardship” of any kind. Recent legislation passed by the Tories has put an end to that.
Previously, failed refugee claimants, those who were ineligible to make a refugee claim here, or those who missed the opportunity to make one, could always submit an application on H&C grounds citing the possibility of persecution back home as their “hardship.” Sometimes they did so when there was a change in circumstances back home that occurred after they used or lost their chance to make a refugee claim here.
However, the federal Conservatives wanted to prevent such individuals from gaining access to the H&C application to redress this problem. Accordingly, our government put forward a bill last year, which has since become law, preventing the minister and his delegates from considering “the factors that are taken into account in the determination” of refugee claims and claims for protection. Interestingly, officers must still “consider elements related to the hardships that affect the foreign national.”
If you are confused about this distinction, don’t worry, so is half the immigration bar.
The Tories assured Parliament that, “These factors will be considered separately during the refugee protection determination process.” What the government didn’t say in its Legislative Summary of Bill C-11 is that some genuine refugees will miss out on the opportunity to make a refugee claim, or a claim for protection, and will not have the ability to fully make out their case in an H&C application.
The curious result is that a person who faces “discrimination” back home can advance those grounds in the context of an H&C application because that “hardship” is not a sufficient basis to make out a refugee claim. However, a person alleging severe “persecution” cannot use that as a basis for his H&C application because it is prohibited.
Accordingly, it now seems that a person facing “discrimination” has a better shot at making out a successful H&C application than a person who is facing full-out “persecution.” Very, very, strange…but true. No doubt, the courts will be asked to sort out the bizarre consequences of this poorly-conceived legislation.
In 2010, about 8,700 individuals were granted permanent residence in Canada on H&C grounds. We are expecting between 7,600 and 9,000 in 2011.
Humanitarian applications made from within Canada must be submitted to the CIC-Backlog Reduction Office in Vancouver and must be accompanied by a fee of $50 for the principal applicant and the appropriate fee for any dependents.*
Since such cases can take years to process, they should be submitted as soon as possible. Those making refugee claims should not wait until their claim is refused to submit an H&C on qualifying grounds since they can be removed from Canada long before the H&C is decided.
*Correction, May 17, 1:44 p.m. EST – An earlier version of this paragraph contained incorrect information. Metro regrets the error.
Guidy Mamann, J.D. practices law in Toronto at Mamann Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com
