One of the most discretionary areas of the Immigration and Refugee Protection Act (IRPA) is section 25 – Humanitarian and Compassionate (H&C) Applications. What does it really mean anymore? When the program is questioned the familiar refrain is that it is a highly discretionary exercise where reasonably minded people will often reach opposite conclusions on the same set of facts. In short, even though the Department strives for consistency it is an elusive if not unattainable goal in this context.
Section 25 or section 114 as it was, infuses life and humanity in an increasingly technical and sterile compilation of rules, regulations and manuals. It is not simply the exception to the rule, as it is perceived in 2007, it is the relief where the law does not speak to sometime competing objectives. Where there is a disconnect between our international humanitarian tradition and the application of laws.
I am often amazed by the familiar refrain by some members of our citizenry that complain of all the ethnics, the illegals and the unwanted that sneak in every year. Take the deportation of the many Portuguese foreign nationals a few years ago. Although many were working, paying taxes and servicing industries that cannot meet demand they were deported. The rational is clear – they should line up like everyone else and enter Canada legally. “Why should they get to the head of the line?” On its face the rational speaks to legitimate and appropriate objectives under the Act that is not to facilitate or encourage illegal migration. They should apply in ordinary course. But here is where upon closer examination we find the disconnect. There is no program for these individuals. Although they are needed, do well and benefit the Canadian economy the immigration program cannot facilitate their entry. It is these very imbalances that section 25 can address while the government may or may not attempt regulatory amendment that will take years to pass in the House of Commons.
According to statistics from CIC, H&C applications are not statistically exceptional in that approximately 50% are approved. The purpose of section 25(1) of IRPA is described in the overseas processing manual as follows:
This section gives the Minister the authority to apply judgment and flexibility in cases that do not meet the requirements of the Act, but which are justified by humanitarian and compassionate considerations. More specifically, it does the following:
– allows, either upon request by the foreign national who is inadmissible or otherwise does not meet the requirements of the Act, or on the Minister’s own initiative, for an examination of the circumstances of the foreign national with the possible outcome of granting a permanent resident visa to them on humanitarian and compassionate considerations…
Overseas Processing Manual, Chapter. 4, s. 2.1
Many in land H&C applications are based on a significant degree of economic and cultural establishment as set out in chapter IP 5:
Does the applicant have a history of stable employment? Is there a pattern of sound financial management? Has the applicant integrated into the community through community organizations, volunteer or other activities; What hardship would occur if the application for a visa exemption were refused – The level of interdependency; Support available in the home country; Whether the applicant is able to work; and Is there a significant degree of establishment? Inland Processing Manual Chapter 5, 6.7 and 8.7, 11.2
BEST INTERESTS OF CHILDREN
The IRPA cites a statutory obligation to take into consideration the best interests of the child when examining and deciding the circumstances of a foreign national making a request under section 25(1) of IRPA. Section 5.19 of the IP5 Guidelines further reiterates the requirement that Officers must always be alert and sensitive to the interests of children when examining section 25(1) requests.
In Land Processing Manual, Chapter 5, section 5.19
This Court has always emphasized the importance of H&C officers being alert, alive and sensitive to the best interests of the child affected by the decision. Decary J.A. of the Federal Court of Appeal stated in Hawthorne:
The “best interests of the child” are determined by considering the benefit to the child of the parent’s non-removal from Canada as well as the hardship the child would suffer from either her parent’s removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. The officer does not assess the best interests of the child in a vacuum. For all practical purposes, the officer’s task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent. Hawthornesupraat p.562-563.
In short, does the Officer provide consideration as to the emotional and psychological effects of any potential hardship on the children? Does the Officer sufficiently weigh the psychological and emotional bonds created between the children and the members of their community and family in Canada? Does the Officer indicate that s/he has considered the psychological effects of uprooting the children from an environment in which, they have may acquired skills and have thrived. Dos the Officer, in effect, give consideration to the proposition that the children’s present success and adaptive skills are contingent on their ability to maintain access to a supportive network and a financially secure household. In sum, in considering the children’s experiences with family and community, the Officer may analyze their experiences as “transferable language skills,” treating the members of their community as readily exchangeable with similar communities, so long as they speak their native language. This is a reviewable error.
One the strongest factors that can be argued under H&C applications is the best interests of children. There is no question H&C applications can be one of the most challenging applications for a lawyer to prepare for a client but it can also be one of the most rewarding!