Immigration professionals are often asked by their clientele to invoke Humanitarian and Compassionate grounds (H&C) as the basis for successful applications for permanent residence. This is most often the case when it comes to sponsoring parents and is based on information from acquaintances that have obtained or heard from others that they have obtained a positive result from IRCC (Immigration, Refugee and Citizenship Canada).

The frequency of requests for sponsorship of parents is explained by the lately introduced caps, which  from year to year leave frustrated a proportion of about 80% of Canadians wishing to sponsor their parents, but unable to count among the 20% who have either won the lottery or were quicker to enter the information when (as this year) IRCC posted a form then withdrew it after four minutes. However, H&C grounds may be invoked not only in this matter, but also in any other permanent residence file, such as in the field of economic immigration or asylum seekers.

The optimism of those who rely on what they have learned from others is completely inadequate, because the humanitarian grounds are carefully assessed according to the specific details of each case. Therefore, even if two cases are almost similar, the officials in charge of examining the respective applications proceed to a thorough analysis of all the probative material in the file and can reach completely different decisions despite the apparent similarity of the respective situations.

The good news, however, is that in recent years the severity of the appreciation of H&C grounds has relaxed considerably as a result of the intervention of the judiciary in particular. The Federal and Supreme courts have taken a stand against the narrow interpretation that IRCC officials have given over the course years to Article 25 of the Immigration and Refugee Protection Act (IRPA), which authorizes the Minister of Immigration to exempt an applicant for permanent residence from the application of criteria that would lead to the rejection of his file, when he (the Minister)  “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.”

This section of IRPA represents the only legal provision on which the entire scaffolding of indications and interpretations issued by IRCC after the coming into force of the IRPA was based and which have led to numerous refusals until the aforementioned intervention of the courts of justice. The explanation lies in the restrictive instructions issued by the IRCC through IP Guide 5 (currently withdrawn from circulation), which asked immigration officials not to accept a request based on H&C reasons unless they reach the firm conclusion that, otherwise, the candidate would suffer consequences defined by the expression “unusual and undeserved or disproportionate hardship”.

It should be noted that such an assessment benchmark is completely absent from the text of the law. This is what the Supreme Court of Canada highlighted in 2015 in resolving the dispute in Kanthasamy v. Canada MCI.  In essence, the Supreme Court decision states that IP Guide 5 does not contain mandatory rules, but descriptive elements for the use of officials, which are not exhaustive and cannot limit their freedom of appreciation.  In any case, according to the aforementioned decision, it is not necessary for the officer in charge with such applications to approve them only if all the three qualifications of IP 5 (unusual, undeserved and disproportionate) are met and be limited only to the assessment of the “risk” that would confront the applicant. I n contrast, immigration officials must assess in a “flexible” manner whether or not the circumstances of the file justify the application of Section 25 of IRPA, using not the standard “unusual and undeserved or disproportionate hardship”, but a criterion introduced since 1970 by the decision of the Federal Court in Chirwa v. Canada (MCI), namely the existence of circumstances “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”.

Following the intervention of the Supreme Court, the IRCC removed from its guides the phrase “unusual and undeserved or disproportionate hardship”, but replaced it with “extreme hardship”. On its official site, the IRCC continues to put in place a set of criteria that should guide its officials facing such demands, respectively: to what extent that person has integrated into Canadian society, his family ties, the best interests of any affected child and the consequences they would suffer in case of refusal.  In the light of the decision of the Supreme Court though, these criteria are neither exhaustive nor mandatory.

Essential in a request based on H&C grounds are the arguments relied upon by the applicant and the evidence administered to convince the IRCC that their application involves circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”.

The judicial practice subsequent to the decision in Kanthasamy v. Canada further developed, mostly in favor of applicants for H&C grouns, the ideas and criteria established by the Supreme Court. Let us recall that, unlike most of the continental European law systems that many of us are familiar with, in Canada judges’ decisions have the power of “judicial precedents”, becoming mandatory not only for the parties who have tried, but for any other persons or governmental authorities facing similar situations. Therefore, immigration officials will be kept in the future to respect such judicial commands as: to consider not only the existence of hardship, but also humanitarian and compassionate considerations in the broad sense of the term (Marshall v. Canada, 2017); to avoid examining each aspect of the file in isolation, fragmented, instead of taking into account the unifying elements of the case (Mursalim v. Canada, 2018). In particular, the courts have set out detailed rules on how officials should assess the interests of children affected by the decision they will make, such as the emotional consequences, age and needs of the child, and the extent to which they will have the opportunity to satisfies them (Daugdaug v. Canada (MCI), 2018). The same Supreme Court decision in Kanthasamy v. Canada pointed out that due to the sensitivity of the child, circumstances that would not justify the application of H&C grounds for an adult, can nevertheless lead to a positive solution in the case of a child.

The IRCC is now urging officials to look at other issues, such as the level of dependence between the child and the person applying for H&C grounds, the impact on the education of the child, consequences related to the sex of the child, etc., and the officials with decision-making power understand now that these are exemplary enumerations, not mandatory instructions that limit their ability to appreciate the specificity of each situation. Therefore, the years that have elapsed since Kanthasamy v. Canada have marked a decline in the number of refusals, which doesn’t mean that anyone can invoke H&C grounds  and expect to see their application approved. The most important thing for those who are convinced that they have such H&C reasons is not to rely simply on the understanding and good will of the officials on whom the file will fall, but to prepare it with all the attention, presenting in extenso their arguments and producing as much evidence as possible: medical certificates, even psychiatric reports if needed, notarized statements from those affected and witnesses who know their situation, relevant photos, evidence of the material situation, verifiable information about the country where the person should return to  in case of refusal, even drawings made by the affected children. In the light of the above, a considerable impact on the evaluation of the case may have references to different judicial precedents applicable to their case[1].

Finally, it should be noted that not everyone can apply for humanitarian reasons. For example, those who enter Canada illegally are included in the so-called category of “designated foreign nationals” who are prohibited from invoking humanitarian and compassionate considerations for five years from entering Canada or from the date they were denied the refugee claim. It is interesting to note, however, that those who are the subject of a removal order for reasons other than illegal border crossing, are not stopped to invoke Section 25 of IRPA.

In conclusion, with little exceptions, the invocation of H&C grounds is within the reach of any applicant for permanent residence, but the approval of this approach depends decisively on the ability of the person concerned to present his/her situation exploiting all the elements that define its uniqueness. It is their task to highlight these elements, and not the Government official’s to discover them. However, the assessment of H&C grounds requires in my opinion the intervention of the human factor; that is, the discernment of a being in the flesh and bones is essential for the correct evaluation of the situations invoked by the applicants. In a future article we will examine the extent to which this component is currently threatened by the increasingly widespread introduction of artificial intelligence into decision-making processes taking place within the IRCC.

[1] It is significant in this sense that the IRCC itself suggests to its officials to carefully study (but very few do) all the precedents presented in this article, plus others, such as  Baker v. MCI, Legault v. MCI, MCI v. Hawthorne and Owusu v. MCI.