ARCHIVED – Operational Bulletin 440-B (Modified) – August 15, 2013

This document has expired. Please refer to the appropriate Program Delivery Instructions for current information.

Protecting Canada’s Immigration System Act – Changes to Humanitarian and Compassionate Considerations

This Operational Bulletin (OB) was updated on August 16, 2013, to provide clarification on the notices that are to be used by the Refugee Protection Division (RPD) when a claimant has withdrawn their application after substantive evidence was heard (see section on Restrictions on examination of Humanitarian and Compassionate [H&C] applications).

Summary

This OB provides an overview of the changes to the H&C provisions, as per section 25 of the Immigration and Refugee Protection Act (IRPA), as well as guidelines to determine if an applicant qualifies to have his or her application for permanent residence on H&C grounds assessed.

Background

The Protecting Canada’s Immigration System Act (PCISA) received royal assent on June 28, 2012. It introduced changes to the H&C provisions that came into effect at royal assent, including:

A bar on access to H&C considerations (both in Canada and at a visa office) if an applicant has a pending refugee claim, or if less than 12 months have passed since their last negative decision from the Immigration and Refugee Board of Canada (IRB). This 12-month bar also applies to claims which the IRB determined to be abandoned or withdrawn.

Pursuant to subsection 25(1.21) of IRPA, exceptions will be made to the 12-month bar for applicants who demonstrate that:

  • they would face risk to life upon removal caused by the inability of their countries of nationality (or habitual residence in the absence of a country of nationality) to provide adequate medical or health care.

    OR

  • their removal would have an adverse effect on the best interests of a child (BIOC), under 18 years of age, who is directly affected;

Requests for H&C consideration may be made only in the context of an application for permanent residence or an application for a permanent resident (PR) visa. The H&C request may be aimed at obtaining permanent residence or an exemption from applicable criteria or obligations of IRPA.

Restrictions on examination of H&C applications

Protecting Canada’s Immigration System Act – Royal Assent June 29, 2010

When the H&C application is received on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application), then the H&C application will NOT be examined. The fees and application will be returned.

Exceptions: None.

Protecting Canada’s Immigration System Act - Royal Assent June 28, 2012

When the application is received on or after June 28, 2012, and the applicant has a pending refugee claim, then the H&C application will NOT be examined. The fees and application will be returned.

Exceptions: None.

When the application is received on or after June 28, 2012, and the applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD), then the H&C application will NOT be examined until after 12 months have passed since the date of the last decision. Fees and application will be returned.

Exceptions apply if removal of applicant would:

  • result in a risk to life caused by the inability of their home country to provide adequate medical or health care;
  • have an adverse effect on best interests of a child (BIOC) directly affected by the removal. The child must be under 18 years of age.

The fees will be retained and application will be processed.

When the application is received on or after June 28, 2012, and the applicant has abandoned a refugee claim, then the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be abandoned. The fees and application will be returned.

Exceptions apply if removal of applicant would:

  • result in a risk to life caused by the inability of their home country to provide adequate medical or health care;
  • have an adverse effect on best interests of a child (BIOC) directly affected by the removal. The child must be under 18 years of age.

The fees will be retained and application will be processed.

When the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim AFTER substantive evidence was heard [Foot note 1] at their RPD hearing, then the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be withdrawn. Fees and application will be returned.

Exceptions apply if removal of applicant would:

  • result in a risk to life caused by the inability of their home country to provide adequate medical or health care;
  • have an adverse effect on best interests of a child (BIOC) directly affected by the removal. The child must be under 18 years of age.

The fees will be retained and application will be processed.

When the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim BEFORE substantive evidence was heard Footnote 1 at their RPD hearing, then the H&C application will be examined.

Exceptions: None.

When the application is received on or after June 28, 2012, and the applicant has been determined to be a “designated foreign national”, then the H&C application will NOT be examined for 5 years – refer to OB 440-D “Designated foreign nationals: restrictions on applications for permanent residence” for details.

Exceptions: None.

Note:

Requests for an exemption to the 12-month bar based on humanitarian and compassionate considerations (other than the BIOC/medical exceptions) will not be considered.

Calculating the 12-month bar

The 12-month bar takes effect after the last negative decision is made at the IRB (either at RPD or RAD) and is in effect until the one year anniversary of the decision. Verify the “decision date” field in FOSS to confirm the date from which to calculate the bar.

Example: If a refugee claimant received a negative decision from the IRB on July 10, 2012, the 12-month bar is in effect until July 9, 2013. An H&C request from this applicant can be examined on July 10, 2013.

Immediate Application of the 12-month Bar

Failed refugee claimants, including those with refugee claims rejected before Royal Assent of the PCISA (June 28, 2012), will be subject to the 12-month bar, unless they qualify for an exception on the basis of inadequate medical or health care in the country of origin leading to a risk to life upon removal or best interests of a child (BIOC). This includes applicants covered by public policy who may be requesting H&C consideration. However, if the H&C application was received before June 28, 2012, it will be examined.

Other possible scenarios:

  • Scenario #1 – H&C request received after negative IRB decision (but before June 28, 2012)
    A refugee claimant receives a negative decision from the IRB on February 10, 2012. An H&C application is received on June 15, 2012 (i.e. before Royal Assent of the PCISA on June 28, 2012). The 12-month H&C bar does not apply.
  • Scenario #2 – H&C request received after negative IRB decision (and on/after June 28, 2012)
    A refugee claimant receives a negative decision from the IRB on April10, 2012. An H&C application is received on June 30, 2012. No indication that an exception (medical or BIOC) is being requested. The 12-month H&C bar applies and would be in effect until April 9, 2013, the fee and application are returned.
  • Scenario #3: Spouse / common-law partner applicant with inadmissibility
    An application is received from a spouse under the public policy (not subject to the 12-month bar). But, the applicant has an inadmissibility (e.g., criminality) for which an exemption under H&C is required. The applicant received a negative decision from the IRB on April 10, 2012. If the H&C request associated with the spousal public policy application was made on or after June 28, 2012, the foreign national is subject to the 12-month bar on requests for H&C consideration. If there are no circumstances to justify an exception (medical or BIOC), the 12-month H&C bar applies for the assessment of the exemption/H&C request and would be in effect until April 9, 2013. Note: Officers would still render a decision on the FCH without taking into consideration the H&C factors.
  • Scenario #4 Application received vs. examined
    An application is received by CIC on June 30, 2013. A refugee claim was determined on July 15, 2012. Twelve month bar in effect until July 14, 2013. Citizenship and Immigration Canada (CIC) processes application at intake on July 16, 2013. Bar no longer in effect and application can be examined.

Processing Applications for Permanent Residence requesting Humanitarian and Compassionate consideration (H&C)

Intake Review by Clerk – H&C Applications received on or after June 28, 2012

All H&C applications will continue to be submitted to the Backlog Reduction Office in Vancouver (BRO-V) as the central intake office for the network. During the intake stage at BRO-V, the following checks and actions will be conducted on applications received on/after June 28, 2012 to determine:

  1. If there is a pending refugee claim for H&C applicant:
    • Send non-acceptance letter and issue fee refund to applicant
  2. If the H&C applicant is tagged as a designated foreign national in FOSS/GCMS (s/he is subject to the five-year bar on applying for permanent residence which has not elapsed):
    • Send non-acceptance letter and issue fee refund to applicant
  3. If a refugee claim was rejected, abandoned or withdrawn, after substantive evidence being heard, in last 12 months:
    • The application is reviewed for eligibility to see if the applicant has requested an exception. When completing the Supplementary Information form (IMM5283), the applicant must indicate whether he or she is applying for an exception to the bar based on medical considerations / BIOC by checking the appropriate box.
    • If the applicant requests an exception for medical considerations / BIOC, the application is assigned to an officer for further assessment.
    • If the applicant does not self-identify on the form (check box) and the 12-month bar is in effect, the non-acceptance letter is sent and the fee and application are returned to the applicant. CIC will not retain a copy of the application. An NCB will be entered in FOSS indicating that the application was returned.

Review by an Officer:

1) Risk to life due to Medical Condition

If an exception has been requested due to a life-threatening medical condition, the officer will review the application to determine if there is evidence to support the claim that the applicant would be subjected to a risk to their life due to inadequate health or medical care in any of the applicant’s countries of nationality or, if s/he does not have a country of nationality, the country of former habitual residence. The applicant must demonstrate that removal would lead to an increased risk to life that is real, imminent and foreseeable. Initial required evidence includes:

  • documentation from the applicant’s doctor(s) confirming that the applicant has been diagnosed with a life-threatening medical condition, the appropriate treatment, and confirmation that this treatment is vital to the applicant’s survival
    and
  • confirmation from a reliable source that adequate treatment is unavailable in the applicant’s country of origin.

a) If an officer is satisfied that sufficient reliable evidence has been provided to warrant closer examination of the medical exception request, further assessment of medical factors may now be required. Such steps may include:

  • FOSS/GCMS check for previous medical results
  • Issuance of a new medical examination for determination by Health Branch

Officers should review as necessary steps outlined in OB 063-B and OP 15 (Format PDF, 1.3 MB) for clarification of assessing medical inadmissibility on social services.

/english/resources/manuals/bulletins/2009/ob063b.asp
/english/resources/manuals/op/op15-eng.pdf (Format PDF, 1.3 MB)

For clarification on whether adequate treatment is available, various sources can be accessed such as consultation with Health Branch as well as independent research (note: this information could be extrinsic and procedural fairness required, refer to 5.16 and 5.18 of IP 5.

If, after a closer examination of the medical exception request an officer is satisfied that the applicant who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence to provide adequate health or medical care and a medical inadmissibility determination has been made, the application is referred to the Director of Case Review (delegated decision-maker) who will complete a full global assessment of the H&C request and make a decision. See IP 5, section 10. If a determination has been made that the applicant is not medically inadmissible (ability and intent) then the officer will complete a full global assessment of the H&C application and make a decision. For more information on assessing these cases refer to the following: /english/resources/manuals/op/op15-eng.pdf.

b) If, after assessing the application, the officer determines sufficient and credible evidence has not been provided concerning the medical condition/treatment, the officer will provide a written rationale refusing the request for an exception to the 12-month bar.

  • A refusal letter will be sent to the applicant to advise him/her that the request for an exception to the 12-month bar on H&C consideration has been refused. The reasons will be detailed on file (based on the medical factor).
  • A refund will not be issued.

2) Adverse Effect on the Best Interests Of a Child (BIOC) directly affected

When an applicant is subject to the 12-month H&C bar and there is indication that there is/are BIOC factor(s), the officer will examine the application and submissions to determine if the applicant meets the exception to the 12-month bar. The officer will confirm the following:

  • 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)
    and
  • there is credible evidence that demonstrates that the applicant’s removal would have a direct and adverse impact on a child.

In most cases where the applicant is a child under 18 years of age or if the applicant is the parent or legal guardian of a child under 18 (whether a Canadian citizen or foreign national in Canada or abroad), the exception would apply and the officer would complete a full global assessment of the H&C application and render a final decision taking all factors into account which includes further assessment of the BIOC factor(s).

If the applicant identifies a child under 18 where they are not the parent or legal guardian or where the applicant is not a child under 18 years of age, the application will be further reviewed to determine if the applicant has demonstrated that there would be an adverse effect on the best interests of a child directly affected and that an exception to the 12-month bar applies.

If the officer determines that removal would have an adverse effect on the best interests of a child directly affected, a decision on the H&C application will be rendered taking into consideration all H&C factors presented (full global assessment).

a) If the applicant fails to demonstrate that he/she qualifies for an exception to the 12-month bar due to BIOC, the officer will provide a written rationale refusing the request for an exception to the 12-month bar.

  • A letter will be sent to the applicant to advise him/her that the request for an exception to the 12-month bar has been refused. The reasons will be detailed on file (based on the BIOC factor).
  • A refund will not be issued.

Application for Permanent Residence on Humanitarian and Compassionate Grounds – Exception Requested

Depending on the exception and determination made by the officer, the Stage 1 H&C process can vary.

Risk to life caused by the inability of home country to provide adequate medical or health care

Sufficient evidence presented in the case of A38 inadmissibility, the case is referred to the Director of Case Review (delegated decision-maker) who:

  • makes decision on H&C application
  • considers other H&C factors presented in the application

In the case where the individual is not inadmissible under A38:

  • the officer conducts a full global assessment and makes decision.

After reviewing application and all submissions sufficient evidence not presented Officer advises applicant that the request for an exception to the 12-month bar on the H&C application is refused with reasons on file (based on medical factor) and no refund is issued.

Adverse effect on the best interests of a child (BIOC), under 18 years of age, who is directly affected

Sufficient evidence presented Officer reviews all H&C factors presented with the application to make a full global assessment of the application.

After reviewing application and all submissions sufficient evidence not presented Officer advises applicant that the request for an exception to the 12-month bar on the H&C application is refused with reasons on file (based on BIOC factor) and no refund is issued.

Transitional instructions

The H&C guide and the IMM 5283 where changed effective 28 June 2012. Any applications received after the date of 01 Nov 2012 not using the new forms are to be returned /english/information/applications/handc.asp. Therefore these transitional provisions apply to those applications received on or after 28 June 2012 and on or before 31 October 2012 where the new form was not used and the applicant is subject to the 12 month bar.

In these cases where the new form may not have been used the exception eligibility cannot be readily determined at intake. These cases will need to be assessed by an officer for determination of whether an exception is being requested. Officers must assess whether a) a possible medical condition is identified or b) a child is identified within the application/submissions. If identified, the officer will continue to assess the application as per procedures outlined above. If neither factor is present, the application should be returned to the applicant with a letter indicating that the 12-month bar is in effect and a refund will be issued.

Communications with applicants:

There are two template letters that CIC may send to applicant: one for non-acceptance and the other for exceptions refusals.

Further Information

For further information about the new legislative changes under PCISA, please refer to the following:

  • OB 440-A – The new refugee determination system
  • OB 440-D – Designated foreign nationals: restrictions on applications for permanent residence
Report a problem or mistake on this page
Please select all that apply:

Privacy statement

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: