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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses the humanitarian and compassionate application, a highly discretionary application to remain in Canada when all other immigration possibilities have been exhausted.
Section 25 of the Immigration and Refugee Protection Act allows the Minister of Citizenship and Immigration to exempt a foreign national applying for permanent residence in Canada from any requirement of the Act if justified on humanitarian and compassionate grounds and when the best interest of a child is directly affected.
Humanitarian and compassionate applications currently consider extreme hardship for an applicant in returning to one’s country of citizenship to apply for permanent residence in Canada. Factors in assessing extreme hardship include the best interests of children, family reunification, availability of health or medical care and establishment in Canada, including employment, business, assets, finances and community support.
Risk, previously an important factor, is no longer considered in humanitarian and compassionate applications and must be addressed in a Pre-Removal Risk Assessment instead.
The humanitarian and compassionate or “H&C” application is basically a last resort when all other possible applications have not succeeded. The application is available to persons outside of Canada, but the only forms available on the website contemplate an application made from within Canada. It is not easy to win the application, even if the applicant has a Canadian-born child, and even more difficult to win when applying from outside of Canada, since establishment in Canada is normally an important consideration.
It is also a lengthy application, currently taking between 30 and 42 months for an H&C application submitted from inside Canada and does not in law prevent removal. None the less, many H&C applicants are allowed to remain in Canada until decision. Regardless, for some applicants the decision comes much faster than the processing times currently posted on the website. For those who hold work permits prior to submitting the H&C application, the work permit may be renewed periodically up to the time of decision. For those who do not have a work permit at time of submission, a work permit application might not have any result until there is a positive decision.
Normal fees for permanent residence must be paid when submitting an H&C application, $550.00 per adult and $150.00 per child. If the application is successful, each adult will also pay a $490.00 Right to Residence fee at the end of the process.
Further information is available on the website of Citizenship and Immigration Canada www.cic.gc.ca or specifically http://www.cic.gc.ca/english/information/applications/guides/5291ETOC.asp