Humanitarian and Compassionate Grounds
People who want to live in Canada as permanent residents must normally apply for and obtain a permanent resident visa before they come here. A permanent resident is someone who can live in Canada permanently, but who is not a Canadian citizen. However, if you are already in Canada and you face exceptional circumstances, you may qualify for an exemption from the requirement to obtain a permanent resident visa from a visa office abroad. This guide explains the requirements for an exemption. It also contains the information you need to apply for this exemption and for permanent resident status from within Canada.
Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would result if the applicant had to leave Canada.
The courts have stated that immigration officers are under a duty to consider requests for consideration for humanitarian and compassionate grounds. A written application must be considered.
Applicants are entitled to a full and fair review in the determination of humanitarian and compassionate grounds. See Ken Yhap v. Canada (Minister of Employment & Immigration) (1990), 9 Imm.L.R. (2d) 243 (Fed. T.D.). Immigration officers are expected to consider carefully all aspects of a case, and make an informed recommendation. Decisions are expected to be reasonable. Wholly irrelevant factors cannot be considered.
To qualify for an exemption based on Humanitarian and Compassionate (H&C) grounds, you must prove that your hardship is unusual, excessive, or undeserved and the result of circumstances beyond your control. The cost and inconvenience of applying from outside of Canada is not considered a hardship.
This exemption is for exceptional circumstances only. Unless humanitarian and compassionate grounds are substantiated, your application will be refused. If your application is refused, your processing fees will not be refunded.
Important: There is no right of appeal for Humanitarian and Compassionate cases
A family member in Canada may support your application by submitting a sponsorship that will be considered in conjunction with all other factors presented with your application. Sponsorships accepted in these circumstances are not a legal requirement for H & C considerations, nor are they in accordance with the regulations. However, a sponsorship may be an important factor if you are unable to support yourself. This is not a Family Class sponsorship and you will not be considered a member of the Family Class.
Note: If you are deemed to be eligible for permanent resident status on the basis of Humanitarian and Compassionate grounds, you will not be considered a member of the Family Class nor will you have the rights and privileges associated with the Family Class.
The following are typical examples of humanitarian and compassionate cases that have been recognized by Citizenship and Immigration Canada, but they are not exhaustive:
Spouses Applying at Port of Entry
Usually, a spouse applying for admission as an immigrant at a port of entry without an immigrant visa would be reportable under the Immigration Act for intending to reside in Canada permanently without an immigrant visa. However, Senior Immigration Officers, at the port of entry, are instructed to assess the bona fides of the Marriage relationship. If it is found to be a genuine relationship, a Temporary Residence Permit will be issued pending finalization of the immigrant’s inland application for landing.
There are situations in which a Canadian sponsor withdraws the sponsorship prior to the spouse being granted landing because of the breakdown of the relationship. The Immigration officer will taken into consideration the spouse’s ability to become successfully settled in Canada, and whether humanitarian and compassionate grounds exist. The following factors will be considered:
- education, training, and employment;
- whether there are relatives in Canada willing to assist;
- whether the marriage was originally bona fide;
- whether there are elements of fraud, misrepresentation, or bad faith
- whether there was physical, sexual or mental cruelty in the relationship;
- whether the applicant is pregnant;
- whether there is a Canadian child who would suffer if the applicant leaves Canada
De Facto Family Members
Parents, children, or persons unrelated by blood, who are de facto family members of a Canadian citizen or permanent resident and who are emotionally or financially dependent could experience undue hardship if required to apply abroad for an immigrant visa.
An illegal resident is a person who has no legal status in Canada. This may be someone who entered Canada as a visitor and has remained in Canada beyond the expiration of his or her temporary status. The illegal resident has been in Canada for such a long time, and is so established that he or she has in fact, if not in law, established residence in Canada and not abroad. These individuals are self-supporting, and have severed ties with their home country, and would suffer hardship if required to leave Canada.
Facing a Life Threatening Situation in Country of Origin
Where there a special situation exists in the applicant’s home country that prevents the applicant from applying at a visa office, the applicant may request that an inland application be considered on the basis of humanitarian and compassionate grounds. The applicant has a strong belief that s/he will face a life-threatening situation in his or her homeland as a direct result of the political or social situation in that country.
Individuals in this type of situation should also consider applying as a Conventional Refugee.
Long Term Foreign Workers
Foreign workers who have been in Canada for years, with continual employment, may warrant inland landing if hardship would result in applying for landing at a visa office. Such persons may have homes in Canada, children who were born and educated in Canada, with no real residence abroad.
You and any family members must:
- pass an immigration medical examination;
- pass criminal and security clearances; and
- have a valid passport or travel document.
Important: Family members include your spouse or common-law partner and dependent children. Family members who are not included on your application will not be able to be sponsored by you at a later date. If your family members are Canadian citizens or permanent residents, they do not have to meet the above mentioned requirements.