MIGRATION 

When All Else Fails Humanitarian & Compassionate Considerations By Ralph Dzegniuk The information in this article is based on  the Immigration and Refugee Protection Act in Canada. It should not be considered as an inducement and encouragement by the writer or the publishers. - Publisher's Note

So you came to Canada many years ago with some sort of temporary resident status (work, study or visitor visa), perhaps you even attempted to extend your temporary status for a while, but it has now expired. Or, perhaps you have claimed refugee status, however your claim has failed and having the decision reviewed by the Federal Court is either not an option (there are no reviewable errors in the refusal) or has also ended with a failure. 

Whatever the case might be, you have now spent a significant period of time in Canada establishing strong social and economic ties with this country and are at a loss as to what your next step should be. Perhaps you have already explored different options, such as the Skilled Worker route, but have determined that you don’t qualify either because you don’t score the minimum required 67 points or because you don’t satisfy the new Ministerial Guidelines (or both). Does any of this sound familiar?

Well, despite your difficult circumstances, you are not completely out of options. When all else fails there is still the Humanitarian & Compassionate (commonly known as simply “H&C”) application. Now, this doesn’t mean that anybody and everybody in Canada without status or without other options of immigration should automatically file a Humanitarian application. In order to stand a reasonable chance of success on such an application, there are certain criteria that must be first satisfied. Here are some of the basics:

First of all, some period of residence in this country is required in order to show some degree of establishment. While there is no clearly defined “minimum period” of residence required, it would be difficult to convince anyone, and certainly immigration officials, that you have established yourself in Canada in just a year.

Secondly, it is important for you to have been productive while in Canada. History of relatively stable employment (and evidence of having paid taxes) or of furthering your education (regardless of type or level of education, this could even include ESL courses) is very helpful and strongly recommended. In direct contrast, social assistance is a big “no-no” and is viewed negatively, particularly if received over an extended period of time. If at all possible, when filing of an H&C application is being contemplated, it is always a good idea to get off social assistance as quickly as possible.

Volunteerism and active participation in one’s local community is also an important factor always to be highlighted in these applications. This covers a very broad spectrum of things, from membership and engagement in a religious organization (whether a church, temple, mosque, synagogue, etc.); a community or immigrant-support centre, to even assistance at a retirement home or a school. The options here are really limitless, the bottom line is to pick something that interests or fulfills you and stick with it.

Furthermore, if you have any family, relatives or even close friends in Canada (Canadian citizens or permanent residents) with whom you have a strong relationship this could also add a significant persuasive layer to the application. This is especially so if there is evidence of genuine emotional, financial or physical inter-dependence between you and these individuals (this is particularly true if the person concerned is ill, elderly, or a child). In many of such cases, it could even be argued that you are a de-facto member of this person’s family and therefore a forcible separation would be both inhumane and difficult to bear.

Moreover, if over your period of residence in Canada you have effectively lost all meaningful ties with your home country, this is also an important factor to be highlighted in these applications. If you no longer have any close family members (or other individuals) who could assist you with re-integration upon return, or if your chances of employability are low because of your age and/or long period of absence from your home country, this must be clearly spelled out and it could further bolster your application.

In addition, if you have either Canadian or foreign-born children, all of the factors relating to their “best interests” must be carefully set out in the application, as this is one of the key considerations in the H&C process. This includes details of their schooling (Report Cards and letters from their teachers or classmates/friends are strongly recommended); participation in extra-curricular activities; relationship with any Canadian relatives or family members as well as the knowledge of their native tongue (in many cases, particularly when the children arrived in Canada at a young age, they are no longer able to communicate in their mother tongue which could present difficulties with re-integration upon return). All of these are important factors which should be always emphasized in such applications.

Finally, if you are fearful of returning to your home country due to possibility of discrimination, harassment or any other complications related to your personal circumstances, this should also be carefully outlined as it could add a further persuasive layer to the application. If you are a failed refugee claimant, this means that your Narrative could be effectively incorporated into the H&C application. The good news is that in the H&C, these factors are not assessed from the very high threshold of “persecution” or “personalized risk” (used by the Refugee Board and PRRA officers) but rather, from the lower threshold of “hardship.” In most cases, it is much easier to argue that the treatment you are likely to receive in your home country would place you in a situation of “hardship” than it is to meet the legal definitions of “persecution” and “personalized risk.”

Now, as many of you might have heard, the H&C application process indeed takes a considerable period of time (on average approx. 3 years). However, you could use that time to your advantage by periodically updating your application with new supporting documentation to make it even stronger. You will be usually informed when the officer is ready to make a decision when you receive the so-called “30 day rule letter” providing you with the last opportunity to update your application.

This is, without a doubt, the most discretionary type of an immigration application that exists under the Immigration and Refugee Protection Act.  Your chances of success will depend, to a large extent, on skillfully and creatively crafted written submissions as well as varied and all-encompassing documentation in support of your application. 

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Ralph Dzegniuk, B.A., L.L.B. can be reached by telephone at: (416) 548 9072 or via email at: Ralph@migrate-2-canada.com More information about Mr. Dzegniuk and his immigration & refugee law office can be found at http://www.migrate-2-canada.com