Humanitarian and Compassionate Grounds: A Vital Pathway to Permanent Residence
In Canadian immigration legislation, a crucial provision exists to safeguard individuals on Humanitarian and Compassionate (H&C) grounds. This provision is of immense significance as it allows those who may not otherwise qualify to apply for Permanent Residence (PR).
Who Can Apply for PR Through H&C Grounds?
Individuals in Canada without legal status, residing in the country for at least 3 years, become potential candidates to apply for PR through H&C.
The Legal Test and Unusual Hardship
To be eligible, applicants must clearly demonstrate that they would face unusual and undeserved or disproportionate hardship if forced to leave Canada.
Assessment and Exceptional Circumstances
Applications are evaluated based on the provided information and the applicant’s personal circumstances to determine if they merit H&C consideration. Approval for PR on H&C grounds is granted only in exceptional cases. The process may take several years.
No Guarantee of Approval
It’s important to note that H&C applications do not come with a guarantee of approval. In certain cases, seeking a review of the decision by the Federal Court of Canada is advisable. Many in-land H&C applications rely significantly on economic and cultural establishment in Canada.
Factors Considered in H&C Applications
- Employment History: Stable employment record.
- Financial Management: A pattern of sound financial management.
- Community Integration: Involvement in community organizations, volunteer work, or other activities.
- Hardship Analysis: Examination of the hardship that would occur if a visa exemption application were refused, including the level of inter-dependency, support available in the home country, the applicant’s ability to work, and the degree of establishment.
Best Interests of the Child: A Powerful Factor
Under H&C applications, the immigration legislation obliges considering the best interests of the child. This serves as one of the strongest arguments in support of such applications.
In cases where an applicant is subject to the 12-month bar and seeks an exception based on the best interests of the child, carefully assess the application and submissions. Verify that both of the following conditions are met:
- A child would be personally impacted by the applicant’s removal, with specific reasons stating why the removal is not in the child’s best interests.
- There is credible evidence demonstrating that the applicant’s removal would directly and adversely affect a child.
Child as Applicant or Dependent: The exception applies when the applicant is a child under 18 years of age or if the applicant is the parent or legal guardian of a child under 18 (whether a Canadian citizen or foreign national in Canada or abroad). In such cases, conduct a comprehensive global assessment of the Humanitarian and Compassionate (H&C) application, considering all factors, including a detailed assessment of the best interests of the child.
Exception for Best Interests in Other Circumstances: If the applicant identifies a child under 18 but is neither the parent nor legal guardian, or if the applicant is not under 18 years of age, evaluate whether the 12-month bar applies. Determine if the applicant has presented evidence of an adverse effect on the best interests of a directly affected child. If so, make a decision considering all factors, including a detailed assessment of the best interests of the child.
Refusal Letter and Fees: If the applicant fails to demonstrate eligibility for an exception to the 12-month bar, issue a refusal letter without refunding the fees.
Application Processing Time for Humanitarian and Compassionate Grounds
After submitting your PR application on humanitarian and compassionate grounds (H&C), the most challenging step is often the waiting period. It’s essential to understand that the H&C application process is typically slow, and it usually takes between 24 to 36 months for processing.
However, the processing time can vary depending on the specifics of each case, and in some instances, it may take even longer. During this waiting period, you are allowed to remain in Canada.
Importance of Staying in Canada during the Process
It is highly advisable not to leave the country while your application is being processed, as you may be contacted for an interview or asked to provide additional documentation at any time.
H&C Application Rejection and Appeal
In the unfortunate event that your H&C application is rejected, you will be required to leave Canada promptly. However, Canadian immigration law allows you to appeal the decision by filing an appeal with the Federal Court.
Acting quickly is crucial at this stage, as you only have a 15-day window to file a Judicial Review at the Federal Court of Canada. The appeal process is legally intricate and calls for the expertise of a skilled immigration lawyer to strengthen your case and increase your chances of a favorable outcome.