Humanitarian and compassionate (H&C) considerations: Intake and foreign nationals whose H&C can be assessed 

Who may apply

Foreign nationals who are inadmissible or who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA) or Immigration and Refugee Protection Regulations (IRPR) may make a written request for consideration under subsection A25(1). There are some restrictions with respect to the examination of applications for humanitarian and compassionate (H&C) considerations. The restrictions are explained in the “Restrictions on the examination of H&C applications and requests” section below.

How to apply

• Submitting an H&C application or request
• Fees

Submitting an H&C application or request

In Canada: In-Canada foreign nationals can have their H&C considerations assessed as per subsection A25(1). They may either submit a stand-alone H&C permanent residence application or request an exemption from a given requirement of the IRPA or the IRPR on H&C grounds as part of a permanent residence application submitted in a specific immigration class (family, economic or refugee). The permanent residence application must be submitted in accordance with the requirements specified in section R10.

Overseas: A stand-alone application for H&C considerations (IMM 0008 & IMM 5283) does not exist overseas.

Requests for H&C considerations under subsection A25(1), submitted outside of Canada, must be made in writing, in the context of an application for a permanent resident visa. Applicants must use the departmental application forms for one of the three immigration classes and provide information in support of their request for H&C considerations under subsection A25(1).

Fees

Processing fees

In Canada:Processing fees must be collected for all permanent residence applications made under  subsection A25(1) before the application or request can be examined [subsection A25(1.1) and section R307].

Overseas: Processing fees pertaining to the application for a permanent resident visa must be paid before a H&C request may be considered. The fees cannot be refunded even if the application is refused.

Note: If processing fees for a permanent residence application or visa are not applicable (for example, for a refugee application) and there is a request for H&C considerations, processing fees for the H&C assessment are required.

Restrictions on the examination of H&C

There are a number of restrictions on the examination of H&C applications and requests for H&C considerations:

• Certain people who have an outstanding H&C application or request
• Exemption from any of the criteria or obligations of Division 0.1 (Invitation to make an application)
• Inadmissibilities for which an exemption may not be requested
• Other restrictions on H&C applications or requests
• People who have made a refugee claim
• Calculating the 12 month bar
• Immediate application of the bar
• Exception – Medical condition posing a risk to life
• Exception – Best interests of the child (BIOC)
• Intake of applications for family members

Certain persons who have an outstanding H&C application or request

When the H&C application or request is received on or after June 29, 2010, and the applicant has...	then the H&C application or request...
a pending H&C application (this could include an H&C request made in the context of another type of permanent residence applicationFootnote 1)	should NOT be examined; there are no exceptions H&C application: return the fees and application H&C request: refuse the application made within the category and provide a clear rationale with regards to the H&C requested

Exemption from any of the criteria or obligations of Division 0.1 (Invitation to Make an Application)

H&C considerations apply to foreign nationals only and can be used to grant permanent resident status or to grant an exemption from the provisions of the IRPA, the IRPR and Minister’s instructions (MIs) established under section A14.1 (economic pilots).

H&C considerations cannot be used to modify provisions of the IRPA or the IRPR or to provide exemptions from MIs established under section A10.1 and section A87.3. However, if a person meets the exact provisions of the MIs under section A87.3, then the officer may still use H&C considerations to overcome any regulatory requirements that are assessed later.

Inadmissibilities for which an exemption may not be requested

Other restrictions on H&C applications or requests

People who have made a refugee claim

If a person has filed a refugee claim in Canada, they may be subject to a bar on access to H&C considerations (both in Canada and overseas). Specifically, a person is barred from accessing H&C considerations in the following situations:

• They have a refugee claim that has been determined eligible to be referred to Refugee Protection Division (RPD), OR is pending before the RPD or the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada (IRB).
• They made a claim for refugee protection that was determined to be ineligible to be referred to the RPD, and they have a pending pre-removal risk assessment (PRRA) application.

There is a 12-month bar on making an application or request for H&C considerations if a person has received a negative decision from the IRB on a refugee claim (including cessation of refugee protection) or from the Federal Court on an application for leave or judicial review. The bar is in effect if less than 12 months have passed since

• the day on which the foreign national’s claim for refugee protection was rejected or withdrawn — after substantive evidence was heard^{Footnote 3} — or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or
• the latest of
• the day on which the foreign national’s claim for refugee protection was rejected or withdrawn— or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred;
• the day on which the foreign national’s claim for refugee protection was rejected or withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and
• the day on which the Federal Court refused the foreign national’s application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection.

Note: The 12-month bar is calculated differently depending on whether the case is before the RAD or before the Federal Court. The bar in paragraph A25(1.2)(b) only applies while the decision is pending before the RAD and there has been no request for an exception per A25 (1.21) on the basis of BIOC or medical reasons. Once the case is before the Federal Court, that is, post-RPD or post-RAD, the 12-month bar under paragraph A25(1.2)(c) applies. If the bar is still in place while the decision is undergoing judicial review (JR), then the exemption for BIOC or medical can apply. If the JR is pending more than 12 months after the RPD or RAD decision, then the bar does not apply.

Note: If only one person (principal applicant, spouse or dependant child) on the application is subject to the bar, the application as a whole is barred, unless the exception is requested.

See the following table for instructions related to the bar on making an H&C application or request and exceptions to the bar:

Calculating the 12-month bar

The 12-month bar takes effect on the day the negative decision is made at the RPD (if there is no appeal and no application for leave and judicial review), including the day the claim is withdrawn or abandoned.

If there has been an appeal or an application for leave and judicial review of the decision, the bar takes effect on the date of the latest decision from the RPD, the RAD or the Federal Court. The bar is in effect until the one-year anniversary of the decision.

Immediate application of the bar

Failed refugee claimants are subject to the 12 month bar unless they qualify for an exception on the basis of either of the following:

• inadequate medical or health care in the country of origin leading to a risk to life upon removal
• best interests of a child (BIOC).

The bar applies to applicants requesting H&C considerations in any permanent residence category.

Examples

1. A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application or request on July 10, 2018. The H&C application or request may NOT be examined, as the bar is in effect until February 20, 2019.
2. A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application or request on June 11, 2019. The H&C application may be examined, as the bar is no longer in effect.

Exception – Medical condition posing a risk to life

If an applicant who is subject to the 12-month bar requests an exception due to a medical condition that would pose a risk to their life if they were to be removed, decision makers examine the submissions presented to determine whether there is evidence that the applicant suffers from such a medical condition and whether adequate treatment is available in the applicant’s country of origin. The applicant must demonstrate that removal would lead to an increased risk to life that is real, imminent and foreseeable. Evidence should include both of the following:

• documentation from the applicant’s doctor(s) confirming the applicant’s diagnosis with a medical condition that poses a risk to life, the appropriate treatment, and that treatment for the condition is vital to the applicant’s survival
• confirmation from a reliable source in the country of origin attesting to the fact that an acceptable treatment is unavailable in the applicant’s country of origin.

Confirmation of the information provided by the applicant may be necessary. For further information, see also Inability of a country to provide medical treatment and links to websites detailing medical treatment available in many countries. In exceptional cases, a manager may contact the Migration Health Branch (MHB) to confirm whether a treatment is available in a particular country.

If the decision maker is satisfied that the applicant meets the requirements of the medical exception to the 12-month bar, examine the H&C application or request.

See also H&C medical inadmissibility.

If the applicant does not meet the requirements for a medical exception from the 12-month bar, advise the applicant that the request for an exception to the 12-month bar on H&C considerations has been refused. Do not refund the fees.

Exception: Best interests of the child

When an applicant is subject to the bar and requests an exception because of the best interests of the child (BIOC), decision makers examine the submissions presented to determine whether the applicant meets the exception to the 12-month bar.

The exception applies if, at the lock-in date, a child under 18 years of age is either the applicant or a dependent of the applicant or legal guardian of a child under 18 years of age (either a Canadian citizen or a foreign national in Canada or abroad).

The exception for BIOC may apply in other circumstances:

• if the applicant identifies a child under 18 years of age, but the applicant is not the parent or legal guardian
• if the applicant is not under 18 years of age

To apply the 12-month bar, decision makers determine whether the applicant has demonstrated that there would be an adverse effect on the best interests of a child directly affected. The submissions should include information to indicate

• that a child would be personally affected by the removal (specific reasons stated as to why the removal is not in the best interests of the child)
• that there is credible evidence that demonstrates that the applicant’s removal would have a direct and adverse impact on a child

If the exception applies, decision makers complete a full global assessment of the H&C application or request. The final decision must take into account all factors, including a detailed assessment of the best interests of the child.

If the applicant fails to demonstrate that they qualify for an exception to the 12-month bar, advise the applicant that the request for an exception to the 12-month bar on H&C considerations has been refused. Do not refund the fees.

Lock-in age for dependent children in an H&C application or request: The lock-in date for determining whether a child meets the definition of a dependent child is the date that IRCC received a completed application. Dependent children must be the appropriate age, according to the definition of a dependent child, and must not be a spouse or common-law partner when the application is received.

See Who qualifies as a dependent child.

Intake of applications for family members

Spouse or common-law partner in Canada class (SCLPC): SCLPC applicants who do not satisfy the SCLPC eligibility requirements set out in paragraphs R124(a) and (c) may request H&C consideration. Such applications will be processed as in-Canada H&C applications and not as members of the SCLPC class. See also spouses and common-law partners.