Permanent Residence on Humanitarian and Compassionate Grounds: Best Practices
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.
Health Considerations
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:
- War
- 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.
Gathering Evidence
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.
Legal Arguments
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.
Canada Updates Study Permit Policy So International Students Can Carry Out Essential Work
International Students Able to Exceed 20 Hour Work Week Limit During COVID-19
With COVID-19 putting essential workers like healthcare and grocery store staff out on the frontlines of this global pandemic, the federal government is turning to international students to help fill labour gaps in industries deemed essential.
According to a press release from Immigration, Refugees and Citizenship Canada on April 22, the federal government has issued a rule change that allows study permit holders to work above the maximum 20 hours per week while classes are in session. The only stipulation is that they must be working in an essential service.
This includes:
- Healthcare
- Critical infrastructure
- Food supply
- Supply of other critical goods
- Energy and utilities
- Information and Communication Technologies
- Finance
- Health
- Food
- Water
- Transportation
- Safety
- Government
- Manufacturing
This rule change is effective immediately and will be in place until August 31, 2020.
The intention is to help healthcare facilities and other essential services cope with the strain in resources caused by the COVID-19 pandemic.
Prior to the rule change, international students with valid study permits were only permitted to work a maximum of 20 hours a week for the duration of their studies.
But now, the nearly 11,000 international college and university students studying in health and emergency service related programs – many of which at the tail-end of their studies and close to graduation – will be able to gain valuable work experience in their field while providing health-care facilities with badly needed support during this global crisis.
Students studying and working in other essential sectors will also be able to provide much-needed assistance.
“Immigrants, temporary foreign workers and international students are making important contributions as frontline workers in healthcare and other essential service sectors. We know and value their efforts and sacrifices to keep Canadians healthy and ensure the delivery of critical goods and services,” said Canadian Immigration Minster Marco Mendicino in the IRCC press release.
Furthermore, another recent COVID-19 related rule change will allow international students forced to take online courses due to COVID-19 to obtain a Post Graduation Work Permit (PGWP) after completing their studies. Prior to the change, study permit holders were required to complete a full-time post-secondary program with in-class coursework in order to be eligible for a PGWP.
Students that are unsure if their program or line of work qualifies them as an essential worker and allows them to work more than 20 hours a week can consult with the federal government’s guidelines on essential services.
COVID-19 Impact Update: Asylum Seekers Eligible for Exemptions under the STCA Can Enter At Official Land Border Crossings
Federal Government Changes COVID-19 Measures to Allow Certain Refugees Into Canada
As of midnight March 24th, 2020, Canada had completely closed its border to asylum seekers, prompting widespread criticism from refugee advocates. But on April 20, 2020, the Government of Canada released a new Order in Council (OIC) which restores certain provisions of the Safe Third Country Agreement (STCA), meaning some asylum seekers can now enter Canada again. This OIC is in effect from April 22, 2020, until May 21, 2020.
Canada Border Services Agency (CBSA) announced that refugee claimants arriving at official land border offices who meet specific criteria can now file refugee claims again, marking a small shift in the ban. However, Asylum seekers who attempt to cross irregularly will still be turned back to the United States.
On April 20, Public Safety Minister Bill Blair confirmed that at least 10 people had crossed irregularly into Canada since the ban and that they were all returned to the United States.
This update represents an important change to the unprecedented border closure due to the COVID-19 crisis. The following refugee claimants can now enter Canada from the United States at official land border crossings:
- The refugee claimant has a family member who is in Canada and is a Canadian citizen.
- The refugee claimant has a family member who is in Canada and is a protected person, permanent resident, or a person who has had a removal order stayed.
- The refugee claimant has a family member who is at least 18 years of age in Canada, who has made a claim for refugee protection that has been referred to the Board for determination (unless, the claim has been withdrawn, abandoned, or rejected).
- The refugee claimant has a family member in Canada who is at least 18 years of age and is the holder of a work permit or study permit (unless that work or study permit has become invalid in specific circumstances).
- The refugee claimant is a person who is a minor who is not accompanied by their parent or legal guardian, does not have a spouse or common-law partner and does not have a parent or legal guardian in Canada or the United states.
- The refugee claimant is the holder of a permanent resident visa or temporary resident visa, a temporary resident permit, a travel document, refugee travel papers issued by the Minister, or a temporary travel document.
- The refugee claimant is seeking to re-enter Canada in circumstances where they have been refused entry to the United States without having a refugee claim adjudicated there, or a is a permanent resident who has been ordered removed from the United States and is being returned to Canada.
- The refugee claimant is charged in the United States or has been convicted or an offence punishable with the death penalty in the United States or is charged in a country other than the United States with, or has been convicted or, an offence punishable with the death penalty in that country.
This temporary legislative change represents a restoration of the “status quo,” according to Janet Dench, the executive director of the Canadian Council for Refugees. While critics are “cautiously optimistic,” the restrictions on entry into Canada for asylum seekers are still extremely tight and refugee advocates continue to call for the government to reopen the border to all asylum seekers.
Sources
https://globalnews.ca/news/6852591/canada-us-border-coronavirus-refugees/
https://ipolitics.ca/2020/04/22/some-refugee-claimants-can-now-enter-canada/
https://www.huffingtonpost.ca/entry/canada-us-border-asylum-seekers_ca_5ea18847c5b6194c7be91d5e
Ethiopia Closes Hitasats Refugee Camp Despite COVID-19 Fears
Ethiopia Refugee Agency Disregards Camp Closure Concerns
Early in March, Ethiopia’s Agency for Refugee and Returnee Affairs (ARRA) announced a planned closure of Hitsats refugee camp. Hitsats is a camp in Northern Ethiopia’s Tigray region near the border of neighboring Eritrea. It is home to 26,652 Eritrean refugees including 1,600 unaccompanied children, according to UNHCR.
ARRA has said those in the camp will be moved to two other camps, Mai Aini and Adi Harush, both also in the Tigray region. The government has also said they will offer them the possibility to live outside of the camps in towns. However, many do not want to live outside the camps as those that settle in places like Ethiopia’s capital, Addis Ababa often become dependent on aid.
In a letter sent to the United Nations (UN) at the end of March, those within the camp expressed their apprehension with the move. Other organizations have expressed similar concerns and called for the relocation to be stopped because of fear it will lead to spread of COVID-19 The UNHCR has also expressed these concerns and asked the government to stop the relocation.
Considering how fast a disease like COVID-19 can spread among places like refugee camps, with confined populations, moving people to different camps at this time is extremely unwise. The head of ARRA is not heeding these concerns and has insisted they can start with small numbers of people at a time.
Additional Changes to Ethiopia's Refugee Policy
This move comes at the same time as other changes to Ethiopia’s refugee policy. On April 9, ARRA communicated that it will no longer offer “prima facie” refugee status to Eritreans entering the country. This is in contrast to Ethiopia’s previous policy, which automatically allowed Eritrean refugees a right to stay in the country. The head of ARRA has stated that the criteria for accepting asylum claims is being narrowed and now claimants are required to demonstrate “a personal fear of persecution based on political or religious action or association or military position.” Human Rights Watch states this change happened in late January and has excluded many, including unaccompanied children.
Ethiopia’s 2019 Refugees Proclamation recognizes the definition of refugees under both he 1951 Refugee Convention and the 1969 African Union Refugee Convention and allows for revocation of group refugee determination under certain conditions. These conditions include consultation with the UNHCR and the release of a directive informing the new criteria for registration, appeals process, and reasons for the change. Both these measures have not been taken and Eritrean asylum seekers are left without clear information on whether they will be able to be registered as refugees in the country.
Human Rights Watch sent ARRA a request to respond to these changes, but this request was not answered. Not giving refugees and aid agencies clear knowledge of the process and changes being made is detrimental. ARRA needs to conduct itself with transparency to allow for adequate protection.
The refusal to register many of these refugees, including unaccompanied children, means they are not entitled to protection services or allowed to live in refugee camps. This puts these individuals at great risk. Unaccompanied children are especially at risk, having no family members to try to help them access resources. Human Rights Watch states that under international standards, governments need to prioritize the asylum claims of children and offer them special care and protection. This is not being done.
This change comes two years after the signing of a 2018 peace agreement between Ethiopia and Eritrea. The signing of this agreement led to Ethiopia’s Prime Minister Abiy Ahmed being awarded the Nobel Peace Prize in 2019. Instead of this leading to improvements within Eritrea, much has remained the same.
There is a universal conscription program where everyone, even some under 18, are required to serve for 18 months. This term is often extended and will last over ten years.
Human Rights Concerns
There are also severe restrictions on freedom of the press and freedom of expression throughout the country. In 2019, after the signing of the agreement, about 6,000 Eritreans arrived in Ethiopia to claim asylum every month. The UNHCR also has not changed its guidelines on the assessment of Eritrean asylum seekers saying that “until there is concrete evidence that fundamental, durable, and sustainable changes have occurred these guidelines should be maintained.”
The ARRA deputy director has stated that the closure of Hitsats camp is to “ensure efficient and effective use of available resources,” but given the surrounding political situation and Ethiopia’s changes to its refugee policy, many are sceptical. Ezega mentions that many believe this is being done to satisfy the Eritrean government. Hitsats is close to its border and the Eritrean government sees these refugee camps “as breeding grounds for opposition against its rule.”
Sources
https://www.hrw.org/news/2020/04/21/ethiopia-unaccompanied-eritrean-children-risk
Canada to Continue Accepting Spousal Sponsorship Applications During COVID-19 Pandemic
Canada Makes Travel Exemptions for Spouses of Canadian Citizens and Permanent Residents
While the COVID-19 pandemic has left the world in a state of uncertainty, Canadian citizens or permanent residents looking to sponsor a spouse will not have to worry about putting their plans on hold.
The federal government recently announced that Canada would continue to both accept and process spousal and common-law sponsorship applications for partners living in Canada or abroad. This means that even spouses or common-law partners living outside of Canada will be able to have their sponsorship files processed, despite the strict border restrictions put in place by the federal government.
But that is not all. Immigration, Refugees and Citizenship Canada (IRCC) has made additional rule changes to help accommodate sponsorship applicants during this pandemic. This includes:
Acceptance of Incomplete Applications
As previously mentioned, the IRCC will continue to accept and process new applications for spousal sponsorship and permanent residence, however, they have also announced that incomplete applications will be accepted during this pandemic.
This means that applicants that are unable to obtain certain documents due to service disruptions will still be able to submit an application. However, applicants that do not have all the required documentation will be required to provide a detailed letter that explains the lack of documentation due to COVID-19 related delays.
If applications are incomplete upon submission, they will be kept and reviewed in 90 days. If the application is still incomplete after 60 days, an IRCC will request that you submit the missing documents within 90 days.
Accepting Applications from Those Collecting Social Assistance
When applying for spousal sponsorship, Canadian spouses or partners that have received social assistance are often deemed ineligible. Some examples of social assistance that would have previously rendered you ineligible include:
- Subsidized housing
- Tax credits
- Child care subsidies
However, the IRCC has changed this policy and will still allow applications in cases where social assistance is used.
Exemptions from Travel Restrictions
Back in March, the federal government closed its borders to non-Canadian citizens to help prevent the spread of COVID-19. However, exceptions were made for immediate family members of Canadian citizens and permanent residents.
And because both spouses and common-law partners are considered immediate family, they will still be able to enter Canada from abroad as long as they identify themselves to the airlines and provide supporting documentation stating the identity of and relation to their immediate family members. Such documentation includes:
- Marriage certificate or evidence of common law status
- Passport or Permanent Resident Card
- Birth Certificate
However, before boarding a flight to Canada, you must obtain a valid visitor’s visa along with written authorization from the Canadian government in order to enter Canada. Requesting this authorization can be done one of two ways:
- Emailing the IRCC at [email protected]
- Contacting the nearest Government of Canada office abroad
When requesting authorization to travel to Canada, you will need to provide your:
- Full name
- Date of birth
- Unique client identifier (UCI)
- Passport number
- Detailed reason for travel
- Proof of relationship with an immediate family member in Canada
- Proof of immigration status of your immediate family member in Canada
- Proof of temporary resident Visa or ETA
If you are the spouse or common-law partner of a Canadian citizen or permanent resident hoping to reunite with your loved one during this time of uncertainty, rest assured that steps are being taken to ensure spousal sponsorship applications are not affected by this pandemic.