Humanitarian and compassionate assessment: Hardship and the H&C assessment

Applies to  in Canada and  overseas

As of December 10, 2015, there is no hardship “test” for applicants under subsection 25(1) Immigration and Refugee Protection Act (IRPA). However, the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate (H&C) request will generally include an assessment of hardship. Therefore, hardship continues to be an important consideration in determining whether there are sufficient H&C considerations to justify granting an exemption and/or permanent resident status.

In many cases, hardship will arise due to the requirement in section A11 that foreign nationals apply for a permanent resident visa before entering Canada. In other words, decision makers consider the extent to which the applicant, given their particular circumstances, would face hardship if they had to leave Canada to apply for permanent residence abroad. Although there will inevitably be some hardship associated with being required to leave Canada, this alone will not generally be sufficient to warrant relief on H&C grounds under subsection A25(1) (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463).

Applicants may also request exemptions from other requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR). Decision makers consider the hardship for the applicant if the requested exemption is not granted.

IRCC is required to follow the rules of procedural fairness throughout the decision-making process.

Limitation on assessment of risk in an in-Canada application or request

Subsection A25(1.3) states the following: “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section A96 or a person in need of protection under subsection A97(1) but must consider elements related to the hardships that affect the foreign national.” Decision makers do not determine whether a well-founded fear of persecution, a risk to life, a danger of torture or a risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if they are returned to their country of origin.

Subsection A25(1.3) applies only to H&C applications or requests made in Canada.

Factors to consider in an H&C assessment

Applicants may base their applications or request for H&C considerations on any relevant factors, including, but not limited to, the following:

• establishment in Canada (in-Canada applicants)
• ties to Canada
• the best interests of any children directly affected by the H&C decision
• factors in their country of origin, including adverse country conditions
• health considerations, including the inability of a country to provide medical treatment
• family violence considerations
• consequences of the separation of relatives
• inability to leave Canada has led to establishment (in-Canada applicants)
• ability to establish in Canada (overseas applicants)
• any unique or exceptional circumstances that might merit relief

Decision makers should be sensitive to the fact that individuals have diverse intersectional identity factors that can impact their experiences. The same situation can have differential outcomes and consequences for individuals depending on their personal circumstances. Decision makers should always be aware of Gender-Based Analysis Plus (GBA Plus) principles when rendering decisions on H&C applications and requests for potentially vulnerable populations. Decision makers should always consider an individual’s intersectional identity factors when rendering H&C decisions. Should decision makers require further information on GBA Plus principles and how this type of analysis can help them in rendering their decisions, more information can be found on the Gender-Based Analysis Plus page.

Decision makers are not limited to assessing factors submitted by applicants. They should consider and weigh all the information before them, including, for example, the applicant’s immigration history and criminal record, if applicable.

Additional considerations in overseas processing

In the overseas context, decision makers should also consider the applicant’s circumstances relative to others living in their country when considering whether there are sufficient H&C grounds to justify an exemption. The assessment should not compare life in Canada with life in the country of origin. It assesses the hardship that would result if the applicant were not granted the exemption or a permanent resident visa.

Adverse country conditions

When an applicant submits information claiming that there are conditions in the country of origin that would result in hardship if they were not granted the requested exemption, decision makers must consider the conditions in that country and balance these factors in the hardship assessment. Adverse country conditions could include factors having a direct, negative impact on the applicant, such as war, natural disasters, unfair treatment of minorities, political instability, lack of employment, widespread violence, etc.

The onus is on the applicant to provide information to support the claim of adverse country conditions. When decision makers assess H&C in which adverse country conditions are cited, they should look at the applicant’s submissions and determine whether redress and/or relocation is available.

Assessment of discrimination

Discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection A25(1), whether or not the applicant has evidence that they have been personally targeted.

Administrative deferral of removal (ADR)/Temporary stay of removal (TSR)

An ADR/TSR is an important and relevant factor that an officer must fully weigh. The applicant may not have to explicitly raise the issue of an ADR/TSR in their H&C, but the officer must still consider it in their decision. While an ADR/TSR is important, it does not mean that the circumstances beyond the applicant’s control outweigh all other factors. A moratorium on removals does not preclude the refusal of an H&C application, nor does it mean that an application made on H&C grounds will automatically be allowed. See Saleh v. Canada (Citizenship and Immigration), 2024 FC 135, para 8.

Inability of the country to provide adequate health or medical care in a stand-alone H&C application

If applicants allege that, if returned to their country of origin, they will suffer hardship because of a medical condition, decision makers must be satisfied

• that the applicant requires the treatment
• that the treatment is not adeqequate in the applicant’s country of origin

The onus is on the applicant to provide both of the following:

• documentary evidence from the applicant’s doctor(s) confirming the applicant’s diagnosis with the condition, the appropriate treatment, and that treatment for the condition is vital to the applicant’s physical or mental well-being
• confirmation from the relevant health authorities in the country of origin attesting to the fact that an acceptable treatment is unavailable in the applicant’s country of origin

See also related information about suspected or known health inadmissibility (section A38).

To substantiate an applicant’s claims, decision makers may access reliable, unbiased Internet resources for information on medical care available in the country of origin.  The following are some examples:

• UK Home Office Country of Origin reports
• World Health Organization
• UNAIDS (for HIV cases)
• International Organization for Migration

See also Country of origin information

Client consent may be required if case specific information is requested from third parties.

Evidence gathered to counter the applicant’s submissions must be disclosed to the applicant, and the applicant must be given an opportunity to respond.

If adequate medical services are readily available in the country of origin that the applicant could access, this should be considered in the hardship analysis. The applicant cannot refuse to access those services to support a claim for hardship in an H&C application— decision makers must assess the hardship based on all of the evidence of services available to the applicant. If the applicant acknowledges that treatment is available but claims that it is prohibitively expensive, or that the treatment itself, the hospital conditions or the availability of medicines are inadequate or substandard, these factors, if substantiated, should be taken into account and weighed in the balance with the other H&C factors. Favourable consideration may still be given if other positive factors are evident in the applicant’s submissions.

If the decision maker is satisfied that an applicant would suffer hardship due to a medical condition if they are returned to their country of origin, these and any other positive factors should be weighed against any negative factors, such as the existence of inadmissibility. When favourable consideration may be warranted but there is serious inadmissibility, forward the case to the delegated (PDF, 1 MB) decision maker for a Stage 1 assessment.

Options for applicant to mitigate hardship

In some situations, it may be appropriate to look at whether an applicant could reduce hardship by seeking redress or relocating within their country. The availability of redress and relocation is an important, but not necessarily determinative, factor in assessing hardship. As usual, the assessment of the H&C application or request focuses on a global assessment of factors presented in the application.

Details of these options are as follows:

Redress

If the decision maker concludes that a claim of hardship is valid, they should consider what avenues for recourse or other forms of prevention or redress exist in the applicant’s country of origin. Aside from a determination of how traditional state bodies such as police and courts operate, this may include an investigation of the presence and effectiveness of human rights tribunals, civil society organizations, political parties and other special interest lobby groups or rights activist bodies, and a determination of how freely other types of non-governmental organizations, which might have an interest in the applicant’s case, operate within the country.

Relocation

An applicant for H&C considerations may face hardship in one part of the country of origin but might reasonably be expected to seek relief elsewhere. In such a situation, it may be determined that undue hardship does not exist because the applicant could eliminate the hardship through relocation.