Sunday, February 21, 2021

Humanitarian and Compassionate Applications in Canada Immigration

Hello everyone! Today, I would like totalk about humanitarian and compassionate considerations inrelationship to immigration to Canada Sometimes a person is inadmissible toCanada or they do not meet the requirements of immigration to Canada. Inthose situations humanitarian and compassionate considerationsapplications could be an option for those applicants. But let's first see who is inadmissible to Canada. 

You could be inadmissible toCanada because of security reasons, because of human rights violations,serious criminality, criminality. Also being a member of a gang or organizedcriminality. Sometimes because of financial matters, medical issues or evenbecause of another family member. In those situations, you may not apply forimmigration to Canada. 

If you apply for immigration to Canada then yourapplication will be refused. Some options for inadmissibility they have a time limit. For example, if somebody is inadmissible to Canada because ofmisrepresentation, then there is a 60-month ban on them. But automaticallyafter 60 months they can apply for immigration to Canada. 

But someinadmissibility to Canada it could last for a very long time and in theoryforever. In those situations if the person wants to immigrate to Canada oneoption could be pursuing humanitarian and compassionate considerations. There are other times that it's notabout inadmissibility to Canada but in fact it's because you do not quitequalify to immigrate to Canada. 

For example, you want to sponsor your parents or grandparents to Canada and you do not meet the financial requirements or youwant to immigrate to Canada as a sponsored spouse but unfortunately yoursponsor had already been sponsored to Canada in the past five years and heor she doesn't qualify as a sponsor to sponsor you. 

Whether you cannot apply for immigrationto Canada because of inadmissibility or not meeting all necessary criteria, youcould possibly consider humanitarian and compassionate considerations. However, you need to keep in mind that if inadmissibility is because of securityreasons; because of human rights violations or because of organizedcriminality H&C is not an option Let's talk about the way that you canapply for H and C or humanitarian and compassionate considerations. In fact, theway that you apply depends on where you are right now as the applicant. 

So if youare inside Canada then you need to prepare a package for humanitarian andcompassionate considerations. There is an actual form for H and C that you need tofill out and of course lots of supporting documents that shows that youdeserve to be forgiven by the minister or the minister's delegate which is theimmigration officer to become an immigrant to Canada despite yourinadmissibility or not meeting the qualifications. 

That's a huge package.Then when you prepare the package as I'm recording this video you need to submitthe package in paper to a visa office in British Columbia called the backlogreduction office. But what about outside Canada? When you are applying to a visaoffice outside Canada then you need to prepare your regular immigrationapplication and inside that application you need to have a mini package forhumanitarian and compassionate considerations. 

You need to include everysingle document regarding your humanitarian and compassionateconsiderations. Can you also use the H&C form? Why not! You can use it and you need to let the officer know that you are aware that this is an outside Canadaapplication. However, you are filling out the form to give them better ideas aboutyour request.

 From a legal point of view the H&Capplication falls under Section 25 sub 1 of the Immigration Act. And according tothat section of the Act, if your application is inside Canada, the officermust consider your request for H&C but if your application is outsideCanada the officer "may" consider your H&C request. 

In other words, you maysubmit an application to an outside visa office and they completely ignore yourrequest for H&C. Interestingly enough, for some methods of immigration,requesting H&C is almost not an option. For example, for an Express Entryapplication you don't have much of a room to wiggle in terms of humanitarianand compassionate reasons, because the application will be processed bycomputer before even you upload your documents and if you do not meet therequirements you will never be able to apply. 

But there are certain methods ofimmigration like for example the startup visa or like federal self-employed classthat you still may include your H and C requests but as I mentioned becausethese are outside Canada applications unfortunately the officer may completelyignore your request under the law. One important issue that you need toknow about H&C applications is that unfortunately H&C applications have verylow success rate. 

Probably roughly around 50% of those applications will beaccepted. So unfortunately, many of the applications even those applicationsthat are sent inside Canada they will be refused. This is partly because manypeople use H&C applications as their last resort. For example, they applyfor refugee class in Canada and their application is refused for refugee andthen they try H&C. 

In those situations, the chances that those people getaccepted is close to 0% in many cases unless they have very strong reasons andvery strong documents that convinces the immigration officer they deservepermanent residency under humanitarian and compassionate considerations. A typical H&C application inside Canada has two stages stage number one whichtakes a very long time. Sometimes one and a half years or two years is that anofficer will review the application to see you deserve humanitarian andcompassionate considerations. 

If they conclude that you deserve that then somepositive things will happen for you. For example, if you have a removal order fromCanada that removal order becomes unenforceable. This means that CBSA orpolice officers may not remove you from Canada anymore. Also, if you want to applyfor a work permit if you pass the first stage then you are eligible to submit anapplication for an open work permit and start working in Canada. However the timespan between stage 1 and stage 2 is usually not that long. 

The stage 2includes some more documents from you to make sure that you don't have forexample medical issues assuming that your inadmissibility was not for medicalreasons or for example your background checkother than those areas of inadmissibility that you have alreadyargued and received approval by the Minister under humanitarian andcompassionate considerations. They collect all those documents and thenthey will approve you if they are convinced that you have no other issuesbut those that they already exempted you and you become a permanent resident ofCanada. 

Because this is an inside Canada application you don't need to leaveCanada. You usually can go to an inland office and they will validate yourConfirmation of Permanent Residency or you could consider doing flagpolling or ifyou wish you can of course travel outside Canada and when you come backthey will validate your Confirmation of Permanent Residency. 

So for outsideCanada applications, when you apply if the officer realizes that you deserve aH&C then they will consider H&C and they will exempt you for those partsof your application that it covers the H&C and exempt you. Of course, for therest of your application they will consider all the applicable laws and ifthey approve you then they will invite you to travel to Canada and become apermanent resident of Canada. If you do not qualify for an H&Capplication then there could be some alternatives for you. 

For example,application for a temporary resident permit which allows you to enter Canadaon a temporary basis. You won't become a permanent resident, but that's anopportunity for you. Also, in some areas of inadmissibilityyou sometimes can address the underlying issues as I mentioned for example formisrepresentation you can wait five years and then apply or if this is acriminality issue or serious criminality issue you could potentially apply forrehabilitation or you be deemed rehabilitated and you don't even need togo through the H&C application process. 

Keep that in mind. Can you ask an immigration officer to consider humanitarian and compassionate considerations for a temporary application? Let's say you're applyingfor a work permit or study permit or for a temporary resident visa and you do notquite meet their requirements or you are inadmissible. Can you make thoseapplications? 

Technically speaking, "no." You cannot! Because the law does not support that. However, in some soft cases you could also include an H&C request inyour application. So let's say for example, you do not quite meet thefinancial requirements of a temporary resident visa, but you are also visitingyour dying parents in Canada and you really need to be at their deathbed. 

Inthose situations of course you can explain the situation and if the officeragrees with you they will allow you to receive the visa and come to Canada.Having said that, as I mentioned under the law there is no specific provisionthat says that the officer is mandated to consider H&C for temporary visa ortemporary status applications. 

In terms of the documents that you needto submit, for an H&C application, consider so many different factors. Forexample, "hardship." The hardship that is bestowed to you because of not being inCanada or to your family members and loved ones who are already inside Canadaand they are separated from you. In other words, the hardship because of separationof family members. 

We also could look into the hardship in your home countryin terms of the difficulties that you are facing if you do not immigrate toCanada. We are not focusing on elements of discrimination or elements ofpersecution that enables you to apply for refugee in Canada but the elementsof hardship that are outside the scope of refugee applications. 

Probably thebest and strongest arguments are around the best interest of a child so if thereis a child involved into that application whether that child belongsto the applicant or the child belongs to the sponsors in Canada or in any othershape and form that is directly related to this application then you could andyou have to actually present those arguments to the immigration authorities.

If you are already inside Canada, you need to show that your life isestablished in Canada. You need to show that you have started for example doingbusiness in Canada; Purchasing a place; You have financial resources, and youhave lots of family members that they are part of your circle of life and ofcourse if you leave Canada then you will lose all of those. 

If you have forexample children who are born in Canada that will also help you a lot and that'spart of both your attachment to Canada establishment in Canada and the bestinterest for that child. Another issue that you may consider our medicalmatters. So for example, if you are suffering from a medical condition thatyour home country is not capable to provide you then you could present thatto the immigration authorities as well. 

The list that I mentioned is neitherinclusive nor exclusive. You need to look into all different aspects of your lifeand this immigration and your family members in Canada if any and then try toexplain to the officer why all of those together and collectively makes youeligible to be considered for humanitarian and compassionateconsiderations. 

At the end of the day it is at the discretion of the officer todecide whether to approve you or not to approve you. Sometimes a permanent resident of Canada does not meet their residency requirements. In other words they didn't stay in Canada long enough to keep their permanent residency. 

Inthose situations when that permanent resident applies for a PR traveldocument to Canada then they could present their humanitarian andcompassionate elements of this application; why they were absent fromCanada including the best interest of a child and if they convince theimmigration officer they will issue them a PR travel document. 

They can travel toCanada and renew their permanent residency. However if they lose the caseto that visa office outside Canada, an alternative option is to appeal thatdecision to a division of Immigration Refugee Board of Canada calledImmigration Appeal Division and present the same humanitarian and compassionate documents. 

If they have even more present more and hope that the ImmigrationAppeal Division member or judge will approve their case and will allow themto become again a permanent resident of Canada. In terms of permanent residency,  HNC. the situation is different and we do not actually refer to section 25 but werefer to section 28 of the Act. 

Also, if you are a practitioner you may look intomajor decisions in terms of immigration to Canada by Supreme Court of Canadalike "Baker v Canada" and especially "Kanthasamy v Canada" which is a more recent decision by the Supreme Court of Canada and it specifically discusses thematter of humanitarian and compassionate considerations.   

I hope you enjoyed this training video I have lots of other training videos.Please watch them as well. Please like this video; subscribe to our channel;follow us on Instagram; and share this video with your friends and familymembers to spread the word. 

My name is Al Parsai I'm a regulated Canadianimmigration consultant. I am the author of the bestseller book "88 Tips onImmigration to Canada" and I also teach immigration consulting at Ashton College.