Humanitarian and compassionate application lawyer in Brampton
Updated
The short answer
A humanitarian and compassionate (H&C) application asks IRCC to grant permanent residence from inside Canada, or to waive a requirement, because of your circumstances. The officer weighs factors such as the best interests of any child, how established you are in Canada and the hardship you would face if you had to leave. It is discretionary, and it does not stop removal on its own.
Who this is for
This page is for people living in Canada without permanent status who have built their lives here and cannot easily qualify under another program. It is often people whose refugee claim was refused years ago, people whose temporary status expired, or families with children who have grown up in Canada.
Under section 25(1) of the Immigration and Refugee Protection Act, IRCC must consider a request from a foreign national in Canada to be granted permanent residence, or to be exempted from a requirement of the Act, if humanitarian and compassionate considerations justify it. The officer must take into account the best interests of any child directly affected.
An H&C application is made to IRCC, not to a tribunal. There is no hearing. The decision is made on paper, so the written submissions and evidence carry the whole case. If it is refused, the decision can be challenged at the Federal Court. Manny Hundal is a lawyer, called to the Ontario Bar in 2013, who prepares H&C applications and, if needed, takes refusals to the Federal Court.
What it is and what it is not
An H&C application is discretionary. There is no points system and no checklist that guarantees approval. The officer weighs all the circumstances together and asks whether they justify an exception.
It is also not a way to stop removal. Filing an H&C application does not, on its own, stay a removal order. If removal is scheduled while the application is pending, other steps may be needed, such as a request to the CBSA to defer removal or a motion to the Federal Court. Under section 233 of the Immigration and Refugee Protection Regulations, a removal order is stayed once the Minister is of the opinion that H&C considerations justify an exemption, which is usually called approval in principle, or stage one approval. The stay lasts until a decision on permanent residence.
The factors that matter
Officers look at the circumstances as a whole. Three factors appear in almost every application.
Best interests of the child
Any child directly affected, whether in Canada or abroad, including Canadian-born children. The officer looks at schooling, health, language, family relationships and what would happen to the child if the parent had to leave.
Establishment in Canada
Length of time in Canada, work history, paying taxes, community and religious involvement, volunteering, language, property and family ties.
Hardship
What you would face if you had to leave Canada and apply from abroad: family separation, lack of support, health care, discrimination, country conditions, and age.
Other factors can also matter, such as health, family violence, the reasons you lost status, and your immigration history. Risk factors that would normally be assessed in a refugee claim are treated differently in an H&C application.
How it works
1. Assess whether an H&C application is the right route
Some people qualify under another program, such as spousal sponsorship in Canada. Others are barred from applying for now. Check this first.
2. Gather evidence
Most of the work is evidence. A thin application with general statements is unlikely to succeed. Each factor needs proof.
3. Write the submissions
Legal submissions connect the evidence to each factor and to the law, and explain why the circumstances, taken together, justify an exception.
4. File the application with IRCC
The application is submitted to IRCC with forms, fees, evidence and submissions. Keep updating IRCC with new evidence, such as a new job or a new child, while it is pending.
5. Stage one: approval in principle
The officer first decides whether H&C grounds justify an exemption. If yes, removal is stayed under section 233 of the Regulations.
6. Stage two: permanent residence
The officer then checks admissibility, including criminality, medical and security. If those are met, permanent residence is granted.
7. If refused
A refusal can be challenged by an application for leave and judicial review at the Federal Court. See Federal Court judicial review.
Bars and deadlines
These rules are in section 25 of the Act.
- Pending refugee claim. IRCC cannot examine an H&C request from someone whose refugee claim is pending before the Refugee Protection Division or the Refugee Appeal Division.
- The one-year bar. IRCC cannot examine an H&C request if less than 12 months have passed since the person’s refugee claim was rejected, withdrawn or abandoned at the Refugee Protection Division or Refugee Appeal Division.
- Exceptions to the one-year bar. Under section 25(1.21), the bar does not apply if removal would expose the person to a risk to their life because of inadequate health or medical care in their country, or would have an adverse effect on the best interests of a child directly affected.
- Only one at a time. IRCC cannot examine a new H&C request while another one from the same person is pending.
- Judicial review of a refusal: the leave application must be filed within 15 days of the decision, because it is made in Canada (IRPA section 72).
Evidence that matters
For children
School records and report cards, letters from teachers, medical and counselling records, evidence of language and ties to Canada.
For establishment
Tax returns and notices of assessment, employment letters and pay records, lease or property records, bank records, volunteer and community letters, language course certificates.
For hardship
Country condition reports, medical records and evidence of available treatment, evidence of family abroad (or of having none), letters explaining personal circumstances.
Identity and history
Passports, status documents, previous refusals and decisions, any criminal records and court dispositions.
Common problems
Applying during the one-year bar. The application will not be examined.
General letters of support. Twenty letters saying you are a good person carry less weight than a few specific ones with detail.
Ignoring a removal date. The application does not stop removal before approval in principle.
Not updating the file. Applications can be pending for a long time. Circumstances change, and the officer decides on what is in the file.
How Manny helps
- He reviews your immigration history and tells you whether an H&C application is open to you now, and whether another route is better.
- He identifies the strongest factors in your case and the evidence needed to support each one.
- He writes the legal submissions and prepares the application.
- He advises on removal risk while the application is pending, including deferral requests and Federal Court stay motions.
- If the application is refused, he can challenge the decision at the Federal Court.
Consultations are available in English, Punjabi and Hindi. This page is general information, not legal advice. No lawyer can promise a result.
Frequently asked questions
It is a request to IRCC, under section 25 of the Immigration and Refugee Protection Act, to grant permanent residence to someone in Canada, or to exempt them from a requirement of the law, because of their personal circumstances. It is meant for situations where the usual rules would lead to an unfairly harsh result. The officer considers the circumstances as a whole, including the best interests of any child directly affected, how established the person is in Canada, and the hardship they would face if they had to leave. It is not a program with fixed criteria, and approval is at the officer’s discretion. A strong application is built around specific, documented facts rather than general statements.
Not on its own. Filing an H&C application does not stay a removal order. Removal is stayed under section 233 of the Immigration and Refugee Protection Regulations only once the officer decides that H&C grounds justify an exemption, often called approval in principle or stage one approval. Before that point, the CBSA can still remove you, although people with pending applications may not be a high priority. If you are given a removal date, you may need to ask the CBSA to defer removal, and if that is refused, bring a motion to the Federal Court for a stay. Get advice as soon as you receive any direction to report.
Under section 25(1.2)(c) of the Act, IRCC cannot examine an H&C request if less than 12 months have passed since the person’s refugee claim was rejected, or found withdrawn or abandoned, at the Immigration and Refugee Board. There are two exceptions under section 25(1.21). The bar does not apply if removal would put the person’s life at risk because adequate health or medical care is not available in their country, or if removal would have an adverse effect on the best interests of a child directly affected. You also cannot make an H&C request while a refugee claim is pending. If you are within the one-year period, get advice on whether an exception applies before you file.
The officer must take into account the best interests of any child directly affected by the decision. That includes children in Canada and abroad, and children who are Canadian citizens. The officer looks at the child’s age, schooling, health, language, relationships with family, and what would happen to the child if the parent had to leave Canada, either with or without the child. This factor is important, but it does not decide the application by itself. The officer weighs it with the other circumstances. Strong evidence about the specific child, such as school and medical records and letters from people who know the child, carries more weight than general statements about children’s needs.
Establishment is how settled you are in Canada. Officers look at how long you have lived here, your work history and whether you have supported yourself, whether you have filed taxes, your community and religious involvement, volunteering, language skills, property and family ties. Establishment is weighed alongside how you came to be in Canada and why you stayed. Long establishment built while remaining in Canada without status may be given less weight in some cases. The evidence should show not just that you have been here, but what you have built here and what you would lose by leaving.
Section 25(1) also allows a foreign national outside Canada who applies for a permanent resident visa to ask for H&C consideration, for example to overcome a requirement they cannot meet. This page focuses on in-Canada applications. H&C considerations also arise in other places, such as appeals to the Immigration Appeal Division and residency obligation decisions, each with different rules. If you are outside Canada, the right approach depends on which application you are making and why.
You can apply to the Federal Court for leave and judicial review. Because the decision is made in Canada, the leave application must be filed within 15 days. The Court does not decide the application again. It checks whether the officer’s decision was reasonable and fair, and if not, it usually sends the file back to a different officer. Another option may be a new H&C application with stronger evidence, but a new application does not stop removal and must address the reasons for the earlier refusal. If a removal date is set, a stay motion at the Federal Court may also be needed. Get advice on the reasons promptly.
This page is general information, not legal advice about your situation.