Humanitarian and compassionate: Dealing with inadmissibility
This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.
In certain circumstances, inadmissible foreign nationals may submit a humanitarian and compassionate (H&C) request to overcome the inadmissibility. The Minister or the Minister’s delegated authority may grant an exemption from the inadmissibility if they believe that there are H&C considerations to justify it.
In compelling circumstances, decision makers may issue a temporary resident permit to an inadmissible foreign national who does not meet the requirements of the Immigration and Refugee Protection Act (IRPA) so that they can enter or remain in Canada. For further information, refer to the instructions on temporary resident permits (TRPs).
When to consider an exemption for an inadmissibility
Decision makers consider inadmissibility throughout the assessment process for H&C considerations. Decision makers determine whether the H&C considerations in the case are sufficient to warrant a waiver of the inadmissibility. The application should be refused if the decision maker determines that the H&C considerations are insufficient. If the decision maker does not have the authority to waive an inadmissibility but is of the opinion that there may be sufficient H&C considerations, they refer the application to the delegated decision maker for consideration of an exemption.
When more than one exemption is requested, only the higher delegated decision maker, with the higher authority should decide on all inadmissibility issues.
Recording an exemption for inadmissibility
When recording an exemption for inadmissibility, generate and save the decision letter in the Global Case Management System (GCMS) using the following remarks:
- if an exemption has been granted: “An exemption is granted from the inadmissibility under [provide section or subsection] of the Immigration and Refugee Protection Act (IRPA) for [name of applicant]”
- if an exemption is not granted: “An exemption is not granted from the inadmissibility under [provide section or subsection] of the Immigration and Refugee Protection Act (IRPA) for [name of applicant]”
Procedures for specific types of inadmissibility
- Criminal inadmissibility [subsections A36(1) and A36(2)]
- Medical inadmissibility [subsection A38(1)]
- Inadmissibility of family members [subsection A42(1)]
- Financial inadmissibility – social assistance [section A39]
- If the application was received before June 19, 2013 [section A34, A35 or A37] see Operational Bulletin 596 (modified).
- For cases that may have concerns under section 35.1, please refer to Operational Bulletin 684 – October 15, 2024. The local office and/or CESC is to flag such cases to IOB-SCMD (formerly CMBSECD) for further review as they work on and track these sanctions cases.
Files should not be sent or transferred directly to SIEC.-Montreal without prior consultation with the CESC by email. For cases that may have concerns under section 35.1, the local office and/or CESC is to flag such cases to IOB-SCMD (formerly CM-SECD).
Email address for CESC: IRCC.HIOBHMMtlCESCSecurity-SecuriteCECSMtlMHDGOHI.IRCC@cic.gc.ca
- Misrepresentation inadmissibility under subsection A40(3)
Other considerations
Inadmissibility for which no exemption has been requested
In the absence of a specific request from the applicant, decision makers may refuse an application or consider exemptions on their own initiative at any time during the assessment of an application (subsection A25.1(1)). Such situations may involve either
- an applicant who does not meet the requirements of the IRPA or the Immigration and Refugee Protection Regulations (IRPR)
- new or existing inadmissibility that arises after a positive Stage 1 H&C assessment but before the applicant is granted permanent residence
Example: A member of the applicant’s family included (accompanying) in the H&C application is inadmissible. If the decision maker believes that a positive assessment may be warranted on H&C grounds they can grant an exemption for the inadmissibility or refer the case to a delegated decision maker.
If a member of the applicant’s family who is not included (non-accompanying) in the H&C application becomes inadmissible, and if the decision maker believes that a positive assessment may be warranted, they can grant an exemption under subsection A42(1).
When an applicant does not directly request an exemption but the application suggests that they are requesting an exemption for the inadmissibility, decision makers should treat the application as if the exemption has been requested.
Example: It would be clear that the applicant is seeking an exemption for an inadmissibility without explicitly asking for it if the applicant has a criminal conviction and, in the submission, made a case as to why they should be exempted from that inadmissibility (for example, they served their time, are rehabilitated, did community service, have full-time employment). The onus is on the applicant to make their case, and it is the applicant who “bears the burden of proving any claim upon which he relies” (Owusu v. MCI, 2004 FCA 38).
If an applicant provides additional submissions and requests an exemption on H&C grounds from the new or newly discovered inadmissibility, the request must be considered.
If processing fees 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. If the decision maker uses Minister’s initiative, no processing fees are required for H&C considerations.
Extrinsic information suggesting inadmissibility
Information may come from the applicant (intrinsic information) or from some other source (extrinsic information). When it appears that the decision will be negative because of information obtained from someone other than the applicant, procedural fairness requires that the decision maker provide the applicant with an opportunity to respond before making a decision.
Decision makers must share releasable extrinsic information with the applicant and allow the applicant to make submissions in response to the information before it is used in the decision.