October 20, 2017
H&C considerations: what are they, and when do they come into play?
Humanitarian and compassionate considerations, or H&C considerations, can come up in a variety of ways while navigating the immigration law landscape. The distinctions can be complicated but are important to understand.
The starting point for a discussion on H&C considerations is section 25 of the Immigration and Refugee Protection Act (“Act”). Here, the law states that in certain cases, when a foreign national is either inadmissible to Canada (unless for reasons of security, human or international rights violations, or organized criminality) or does not meet the other requirements of the Act, they can request an exemption based on H&C considerations.
The deciding authority then has to consider whether this exemption is justified considering the H&C factors relating to the foreign national, and taking into account “the best interests of a child directly affected.” Notably, the decision maker “must” consider a request made by a foreign national in Canada, and “may” consider a request by a foreign national who is outside of Canada. A variety of other important exceptions are set out in section 25 which must be carefully reviewed by an applicant seeking to rely on H&C considerations.
So, where do H&C considerations come into play, practically speaking? Some foreign nationals in Canada can file an application for permanent residence on H&C grounds, asking that the standard requirement of applying from outside of Canada not apply to them. In broadest terms, this assessment considers the applicant’s establishment in Canada, and the hardship that they would face if they had to apply for permanent residence from outside of Canada – paying particular attention to the interests of any children directly affected. A significant body of case law has developed on how the different legal factors are interpreted and applied. Again, important exceptions are also set in the Act, as not every foreign national in Canada can apply for permanent residence on H&C grounds.
H&C factors can also be used to overcome other kinds of inadmissibility. An example would be if a Canadian citizen or permanent resident has applied to sponsor their spouse, common-law or conjugal partner who has a criminal record. In such a case, it may be possible to request that the sponsored partner’s criminal inadmissibility be overcome on H&C grounds.
Various appeals before the Immigration Appeal Division can also consider H&C factors, such as residency appeals, removal order appeals, and some family class appeals. One example would be a permanent resident seeking to appeal a negative residency determination. At their hearing, the appellant might admit that they did not meet their residency obligation under section 28 of the Act, but argue that the particular H&C considerations applicable to their case warrant allowing the appeal on H&C grounds (section 61(1)(c) of the Act).
It is important to keep in mind that the most effective way to apply H&C factors in your particular case will vary depending on the context. Researching the most recent case law is critical to ensuring that the H&C framework is well understood, leading to best outcomes.