Important Considerations When Submitting an H&C Application
Applying for Permanent Residence on Humanitarian and Compassionate Grounds (commonly known as an ‘H&C application’) is an option which is available to people who don’t meet the requirements to apply for permanent residence as the member of a class, such as the Family Class or Economic Classes. H&C applications are only available for applicants who are already inside Canada.
However, H&C factors can also be considered if you are applying for permanent residence as a member of a Class (such as the Family or Economic classes), but are inadmissible to Canada or are otherwise unable to meet a requirement to apply as the member of another Class.
For example, H&C factors can be argued by an applicant for permanent residence as the spouse of a Canadian citizen to overcome their inadmissibility to Canada for medical reasons.
The Factors IRCC Will Consider
The circumstances which are present in an applicant’s life which Immigration, Refugees and Citizenship Canada (IRCC) will assess in determining your application are commonly known as H&C factors. While the following list does not include every factor which can be considered by IRCC when assessing an H&C application, the factors which are examined will include:
Establishment in Canada
This factor typically includes how long you have been in Canada, your work and education history in Canada, whether your family is established here as citizens or permanent residents, and whether you are involved with any community groups or organizations. If you have property in Canada, this can also be used to show establishment. If you have undertaken any language studies in French or English to improve your ability to establish yourself in Canada, this will also be considered.
Ties to Canada
This factor refers to the presence of family members in Canada who are citizens or permanent residents. If you have a spouse and any dependent children who have permanent status in Canada, this is usually a strong positive factor.
IRCC will also consider the presence of extended family members such as siblings, parents, grandparents, and other family members. While not as strong, IRCC can also consider other relationships you may have with people in your community, including close friendships and other relationships.
Best Interests of any Children Affected by the Application
This factor refers to whether accepting or refusing the application would be in the best interests of any children (who are under 18 years of age) living inside and outside Canada. For example, if the applicant is a child, or is a parent of a child who are Canadian citizens or permanent residents, this is often considered a strong positive factor. Other relationships to children who are citizens or permanent residents, such as nephews, nieces, grandchildren, and even a close relationship with the child of a good friend can also be considered a positive factor.
However, IRCC is also able to consider if it would be in the best interests of any children for you notto be granted permanent residence, such as if you have children living in your country of origin. Credible evidence should be brought forward that shows why it would be in the child’s best interests for the applicant to remain in Canada permanently.
This is a broad factor that refers to any instance where your health would be negatively impacted if you were not able to become a permanent resident of Canada. Typically, the greater the risk to your life or health, the more consideration will be given to this factor. This often includes the availability of medication or medical treatment for a particular condition which the applicant suffers from, a high cost of treatment, or substandard care or facilities.
Typically, one would want to show how their life will be put in jeopardy due to the inability to receive treatment in their country of origin. This risk must be shown to be real, imminent, and foreseeable if they are removed from Canada. We often advise our clients to include documents from hospitals or their doctors to establish their condition, and our lawyers use their knowledge and education to find information from reputable sources which establishes why an individual is unable to access treatment in their country of origin.
Family Violence Considerations
An officer is also able to consider whether you have been a victim of family violence in your country of origin. If you are a victim of family violence and you fear that if you return to your home country, you will be unsafe and unable to seek protection from the government or police there, you may want to consider filing a claim for refugee protection.
Consequences of the Separation of Relatives
IRCC is also able to consider what would happen to your relatives if you are unable to remain in Canada permanently. This can include being the only one who can care for your elderly parent who lives in Canada, or the impact of separation on an applicant’s Canadian child.
Inability to Leave Canada has Led to Establishment
In some instances, people are unable to leave Canada for a variety of reasons, and this leads to an applicant having established a life in Canada. This inability to leave Canada, such as due to a natural disaster in your home country, can also be considered by IRCC.
Hardship in your Home Country
This refers to any hardship you would encounter if you are forced to return to your home country, such as:
- Natural disasters
- Unfair treatment
- Political instablilty
- Widespread violence
- Lack of employment
If you fear that you will be subject to persecution because of your race, religion, nationality, political opinion, gender, sexual orientation, or membership in another group, you may wish to consider making a claim for refugee protection.
While many applicants may have a strong case, they may not be successful if they do not present the information to IRCC in a compelling way. For example, an applicant may provide medical records to show that they have a medical condition, but if you do not also provide evidence as to why and how your condition will not be properly treated in your home country, IRCC may not fully appreciate the gravity of your circumstances and refuse your application.
In H&C applications, it is the applicant’s responsibility to clearly show IRCC why you should be permitted to remain in Canada permanently based on the H&C factors present in your life.
For H&C applications, having a lawyer advise you on what types of evidence can positively support your application is critical to your application’s chances of success. Lawyers are trained in the principles of evidence law and are able to advise you on how certain documents are likely to be perceived by IRCC, based on both our legal education and our experience handling similar applications.
Another common piece of evidence that is provided by applicants are letters from friends and family in Canada. While many people may be able to provide you with letters, a lawyer will be able to assist in the letter writing process to ensure that your letters of support provide the right kinds of information that will best support your application.
Most importantly, lawyers are able to not only help you present your strongest case through evidence, but can also argue how that evidence should be considered. Humanitarian and Compassionate applications are legally complex, and the law is mainly created by the previous decisions of the Canadian Federal Courts. Lawyers have years of legal education, professional training, and practical experience in interpreting the law from these court decisions. Lawyers are therefore uniquely able to conduct research on court decisions, and rely on our legal knowledge, to argue exactly why accepting your application for permanent residence is the reasonable and correct decision that should be made by IRCC.