August 4, 2026
H&C Applications versus Refugee Claims: Key Differences
Although both processes may allow a person to remain permanently in Canada, they serve fundamentally different purposes and apply different legal tests.
| Issue | Humanitarian and Compassionate Application | Refugee Claim |
| Purpose | Requests permanent residence as an exemption from an applicable criteria under the Act or Regulations (i.e. requirement to apply for permanent residence from outside Canada). | Requests protection from being returned to a country where the person faces persecution on Conventional ground, a risk of torture, a risk to life, or cruel and unusual treatment or punishment. |
| Legal basis | Section 25 of the Immigration and Refugee Protection Act (IRPA). | Sections 96 and 97 of IRPA. |
| Decision-maker | An immigration officer with Immigration, Refugees and Citizenship Canada (IRCC). | A member of the Refugee Protection Division (RPD) of the Immigration and Refugee Board. |
| Main legal test | Whether the applicant’s personal circumstances justify exception from any applicable criteria under the Act, based on humanitarian and compassionate considerations. | Whether the claimant meets the statutory definition of a Convention refugee or person in need of protection. |
| Typical factors | Establishment in Canada (including family ties in Canada, employment, involvement in community/volunteering, etc.), hardship upon return to the home country (may include health concerns/inadequate health care system in the home country), family violence, lack of support in the country of return, adverse country conditions (economic, social or gender-based hardship), etc.), and best interests of children directly affected by the decision. | Persecution in the home country based on race, religion, nationality, political opinion or membership in a particular social group; serious, prospective and personal risk of torture; personal risk to life; or cruel and unusual treatment or punishment. Assesses whether there is an adequate state protection and availability of the Internal Flight Alternative (i.e. can one relocate to another part of the country and be safe there). |
| Country conditions | Relevant as part of the overall hardship analysis, but IRCC does assess risks the individual may face in the home country. | Must show existence of personalized risk in the home country, based on subjective fear and objective evidence. General hardship, poverty, unemployment, inadequate housing, poor public services or a desire for a better life are not grounds to seek refugee protection and are not assessed |
| Is there a hearing? | No, normally decided in writing. | Yes, usually involves an oral hearing before the RPD, where the claimant gives evidence and is questioned. |
| Effect on immigration status | Filing an H&C application does not grant temporary resident status, maintained status, a right to apply for a work/study permit or a right to remain in Canada. | If the claim is eligible to be referred to the RPD, the claimant may apply for an open work permit or study permit, but those would not give claimant any immigration status, will only serve as an authorization to work or study while the claim is being determined. |
| Effect on removal | Filing the application does not ordinarily stop or delay removal. A person may be removed while the H&C application is in process. | A claim referred to the RPD generally engages statutory protection against removal while the claim is pending, subject to eligibility, exclusion, security and other statutory exceptions. |
| Health coverage | No access to any government-funded health care while an application is in process. | Refugee claimants generally receive temporary health coverage through the Interim Federal Health Program. |
| Successful result | The person will receive permanent residence directly, usually following approval in principle and completion of admissibility requirements. | The person becomes a protected person and can then apply separately for permanent residence. |
| Review of refusal | There is no right of appeal, the applicant may only seek leave and judicial review in the Federal Court. | Many unsuccessful claimants may appeal to the Refugee Appeal Division, although statutory exceptions apply. Judicial review at the Federal Court may also be available. |
| Consequences of refusal | Permanent residence is not granted, and the applicant may be removed from Canada, even if the applicant seeks judicial review of the refusal through the Federal Court. | The person may face removal after appeal and judicial-review remedies are exhausted or unavailable. An unsuccessful refugee claimant would generally require an Authorization to Return to Canada in the future. |
The processes cannot usually proceed together
A person generally cannot have an H&C application examined while a refugee claim is pending before the RPD or RAD. After a final negative refugee decision, a 12-month bar generally prevents examination of an H&C application.
The only exceptions to the 12-month waiting period are:
- the removal would adversely affect the best interests of a child directly affected; or
- the person’s life would be at risk because the country cannot provide adequate health or medical care.
Alexandra Goncharova
Alexandra Goncharova earned a Juris Doctor from Osgoode Hall Law School (Toronto) following an undergraduate degree in criminology at York University. Prior to joining Bellissimo Law Group PC, Alexandra worked for a number of years in the practice of immigration law with a focus on immigration inadmissibility and appeals. Alexandra also gained valuable experience and understanding of refugee law during her placement at the Refugee Law Office as a law student. She has extensive experience in immigration, citizenship and refugee applications and appeals and has volunteered for various community organizations. Alexandra is bilingual in English and Russian. At Bellissimo Law Group PC she works as a member of the Immigration Inadmissibility Team and is a passionate and tireless advocate for her clients.