Citizenship: Ministerial discretion to waive some of the requirements for a grant of citizenship on compassionate grounds

On this page

• Process
• Waiver on the ground of a mental disability only
• Waiver Assessment
• Knowledge of an official language and/or knowledge of Canada
• Waiver of the application of subsection 22(4): prohibitions – acts against Canada’s national interests

Process

All waiver requests concerning language, knowledge or a combination of language and knowledge are to be processed by the citizenship officers in the local offices.

The waiver requests concerning the oath of citizenship plus any combination of criteria are processed by analysts at the Citizenship and Passport Cases Division of the Case Management Branch (CMB).

When an applicant requests a waiver of certain requirements of the Citizenship Act or has demonstrated to the citizenship officer that they will not be able to meet the requirement for citizenship concerning language or knowledge due to a medical condition, the applicant should provide a medical opinion completed by their physician.

The medical opinion details the reasons why an applicant may not be able to meet the language and/or knowledge requirements for citizenship, and specifies whether or not the applicant’s medical condition is permanent or temporary in nature. If the physician is of the opinion that an individual is unable to appreciate the significance of the oath of citizenship and/or the consequence of acquiring Canadian citizenship, the requirement of taking the oath of citizenship may be waived as well. This situation will warrant the referral of the file to CMB for decision.

Citizenship officers and CMB analysts may approve a request for a waiver on compassionate grounds in exceptional cases further to having reviewed an applicant’s particular circumstances.

Requirements that may be waived on compassionate grounds

• For any applicant (including applicants 18 to 54 years of age, and all applicants over 54 years of age):
  • knowledge of one of the official languages of Canada;
  • knowledge of Canada and of the responsibilities and privileges of citizenship; and/or
  • the taking of the oath of citizenship.

Minors applying under subsection 5(1)

As of June 19, 2017, minors (applicants under 18 years of age) can apply for Canadian citizenship under subsection 5(1) of the Act.

In the case of a minor, whose file is being processed under subsection 5(1) of the Act, the Minister may waive the requirement respecting

• length of physical presence in Canada;
• signature on the application form of the parent or person who has custody of or is empowered to act on behalf of the minor; and/or
• the taking of the oath of citizenship (due to mental disability for applicants 14 to 17 years of age).

Waiver decisions on elements related to minors can only be made by CMB officers.

See Minor applying under subsection 5(1)

Waiver on the ground of a mental disability only

• The requirement to take the Oath of Citizenship may be waived on compassionate grounds in the case of any applicant (including minors 14 years of age or older) who is prevented from understanding the significance of taking the Oath of Citizenship by reason of a mental disability.
• In the event the Oath requirement is waived, the officer must confirm the identity of the applicant in person before granting citizenship. The certificate is given in person or mailed to the applicant’s guardian.
• In cases where the physician has indicated on the medical opinion form that the person cannot understand the significance of the oath, the citizenship officer must conduct a hearing and request supplementary information to determine whether a waiver of the oath is required. If the officer is of the opinion that the person does not have a mental disability and would be able to understand the oath, the file does not need to be sent to CMB for an assessment (i.e. applicant lives alone or is independent, has a driver’s license and drives despite having a permanent cognitive impairment, medical reports contradict the medical opinion form by indicating that cognition is intact). However, for cases where the applicant is specifically requesting a waiver of the oath, even if the officer is of the opinion that the person is not mentally disabled, the case needs to be sent to CMB for an assessment on all criteria. The officer still needs to provide as much information as possible about the hearing in order to assist CMB to complete their assessment.

Waiver Assessment

Before hearing

• Review application form – were any special needs identified?
• Check if proof of language was not provided because of a disorder or disability
• Check applicant’s work, education and travel history and compare it with the timeline of the medical condition
• Check if applicant has a driver’s license and when it was issued or renewed
• Review any medical reports/notes/assessments on file
• If already on file, review closely the medical opinion form (see more information below) and identify any issues you would like further clarification from the applicant or legal guardian (as applicable)
• Carry out online research regarding applicant’s medical condition, medication, side effects
• Review applicant’s immigration history. Was the medical condition present before/during the immigration process? How did the applicant overcome the immigration requirements? Is there any other information about the applicant that may warrant compassionate considerations?
• Review the applicant’s written knowledge test results, if applicable
• Identify any issues to clarify during the hearing with the applicant or legal guardian

Hearing Stage - Assessment

• Administer the oral language and/or knowledge assessment without causing undue hardship to the applicant to better document and strengthen the arguments for waiver. Generally speaking, the applicant must attempt to complete a language and knowledge assessment even if they are requesting a waiver unless it is apparent that they will not be able to meet one or more of the requirements due to medical and/or cognitive impairment.
• Provide your reasoning if you decide not to administer the knowledge or language assessments. If the applicant does not want to undergo the assessments, they must be advised that they are not going to have another chance after the waiver decision is made. For example, if the waiver request is refused, they will not have another chance to take the test. In the refusal letter, you will have to explain that the applicant did not want to undergo the assessments and therefore we are not able to assess whether or not they meet the knowledge and/or language requirements.
• Clarify any issues or inconsistencies regarding the MO/diagnosis/medical notes or reports
• If the physician answered “Yes” to questions 5a), 5b) and 6c) and the applicant provides a copy of his/her drivers’ licence (i.e. Ontario G1 class driver’s licence) obtained while suffering from a medical condition preventing them from acquiring a general understanding of Canada, it raises the question “How was the applicant able to study and pass the driver’s knowledge test but unable to study for the citizenship test?” However, consideration must be given to when the applicant obtained their driver’s licence in relation to when their medical condition began and how many attempts were made before they obtained their driver’s licence.
• Has the applicant made an effort to learn one of the official languages? Did he/she attend any ESL/FSL classes? Has he/she provided any proof that is unable to learn?
• Applicant’s children? Are they of school age? Who assists them with the school work?
• Applicant’s overall functioning in society. Transportation? Finances? Work? Volunteer work?

If an applicant mentions a medical condition for the first time during a hearing, the citizenship officer will:

• Decide if the medical opinion form (MO) should be given based on the information provided by the applicant and clarify why the condition was not brought to the attention of IRCC earlier.
  • If the MO is given, the applicant should be instructed to have it completed by their physician and submitted within 30 days. The applicant should also be instructed to provide any other supporting documentation, underlying their special circumstances for applying for a waiver.
  • If the MO is not given, this would generally be due to a statement that has nothing to do with a waiver request. Citizenship officers must use their judgement and discretion in deciding what is noteworthy. For example, if the applicant says “I have a bit of a headache today” or “I sprained my ankle” a note to file would not be necessary. However, if the applicant says “I received some bad news yesterday – a good friend passed away” it could be a matter of asking if they would like the hearing to be rescheduled or if they would like to proceed. In this case, it would be prudent to document the applicant’s choice of continuing with the hearing or requesting that it be rescheduled.

Compassionate Considerations

Are there any circumstances/compassionate grounds brought to your attention by the applicant that would warrant a waiver even though the medical opinion itself may not warrant compassionate considerations? If yes, consider the following:

• No definition provided in the Act or the Regulations
• No definition provided in the Program Delivery Instructions (PDIs)
• Not everyone who applies is able to satisfy the requirements to be granted citizenship. A waiver is an exceptional measure that allows for an exemption to a requirement of the Act on compassionate grounds.
• The compassionate grounds decision-making process is a discretionary one. The decision-maker determines whether an exemption of particular requirement of the Act is warranted, as per subsection 5(3).
• The purpose of the compassionate waiver is to allow flexibility to approve deserving cases not able to meet the citizenship requirements.
• Effective decision-making in compassionate waivers involves striking a balance between certainty and consistency on the one hand and flexibility to deal with specific facts of a case, on the other.
• A compassionate waiver assessment based on section 5(3) considers circumstances and/or factors that may be sufficiently compelling to allow for the requested exemption.
• As per IRCC policy, the starting point of an assessment for a waiver on compassionate grounds may start with a medical opinion; however, before reaching a decision to waive or not certain requirements of the Act, a Citizenship Officer needs to examine and take into consideration an applicant’s personal circumstances such as:
  • Age of the applicant
  • The personal situation of the applicant and his/her family
  • Presence of other non-medical hardship factors
  • Past living conditions (How did this person become a permanent resident? Protected person?)
  • The length of time the applicant has been in Canada
• The onus is on the applicant to demonstrate on which grounds a waiver is warranted in his/her case
• The threshold of proof is the balance of probabilities (50+1%)

Documentation

In order for a Citizenship Officer to render a decision on a 5(3) waiver, all documentation provided by the applicant in support of a waiver request must be reviewed prior, during or after the hearing. The following are examples of documents that should be considered:

• Medical Opinion form – should be present
• Language test results, as applicable
• Knowledge test results, as applicable
• If language or knowledge assessments were not conducted, an explanation must be provided
• Additional medical reports/assessments/notes
• Special needs identified on the 5(1)/5(2) application
• Applicant was assisted in completing their citizenship application
• ESL/FSL training proof/school reports/assessments
• Driver’s licence for adult applicants
• Immigration history
• Any other pertinent document(s) on file
• Research results regarding the applicant’s medical condition, as applicable
• Citizenship Officer’s observations/notes gathered during the hearing with the applicant as recorded in the note to file

Decision-Making Stage

• Determine if the case needs to be referred to CMB (oath plus a combination of any other requirement or minor applying under subsection 5(1))
• Review language/knowledge test results. What are the applicant’s results of the written knowledge tests, if applicable, and of the oral knowledge assessment? Any improvements?
• Review your notes taken during the hearing
• Conduct a weighing exercise (citizenship requirements, medical condition, compassionate grounds). Your research regarding applicant’s condition, the type of medication administered to the applicant, their assessment score(s), etc. lead you to believe that, due to his/her condition, the applicant would not be able to acquire to necessary skills and knowledge in order to meet the requirements of the Act? Are there any other circumstances/compassionate grounds that would warrant the approval of the waiver for an applicant even though no permanent medical condition exists?
• Record your decision (Minister’s Delegate decision form, File Preparation Analysis Template (FPAT) [CIT 0544], decision letter, GCMS)

A positive waiver decision will result in the granting of the citizenship application and the applicant becoming a citizen, if all other requirements are met. Reasons for a positive decision must be documented and recorded on file via a short FPAT and in GCMS.

1. Enter required information into relevant fields
2. Select “Documents reviewed” and “Documents reviewed”
3. Under “Additional documents received” include all relevant documents pertaining to the waiver consideration (ex. Medical Opinion form, medical notes, reports etc.)
4. Under “Analysis and Decision” section document your reasons for approving the waiver request. Add any other facts or information that you consider important in documenting your positive decision i.e. compassionate considerations.

A negative waiver decision will result in a refusal of the citizenship application. A negative decision can be judicially reviewed, therefore written reasons should be clear and concise. Ensure that Case notes are entered in GCMS outlining the reasons for the refusal, and that an electronic copy of the waiver decision letter is attached to the applicant’s file in GCMS.

Fettering Discretion

Many authorities under the responsibility of the Minister of Immigration, Refugees and Citizenship are designated (under the Immigration and Refugee Protection Act, IRPA) or delegated (under IRPA and the Citizenship Act).

In deciding cases as either delegates or designates under the applicable legislation, officers must decide without undue external interference. The record of the decision should indicate that officers came to their own conclusion based on all the information that was before them. Fettering of an officer’s decision can occur as a result of influence from a superior, or from the application of policy that conflicts with the relevant legislative authorities. Such decisions would be in violation of the principles of natural justice and could be overturned by a Court reviewing the decision if it is challenged.

Knowledge of an official language and/or knowledge of Canada

Applicants 55 years of age or older

For applications received at the CPC-S before June 11, 2015

Citizenship officers may exempt applicants 55 years of age or older or who turn 55 during processing from having to take the citizenship knowledge test or provide evidence that they meet the language requirement. These requirements are waived automatically by citizenship officers in local offices and do not have to be referred to the CMB.

For applications received at the CPC-S on or after June 11, 2015

Applicants 55 years of age or older on the date they sign their application do not have to demonstrate adequate language or knowledge abilities. Therefore, they are not required to take the citizenship test or provide proof of their language ability. Applicants who turn 55 during processing are required to meet language and knowledge requirements.

Regardless of when the application was submitted, these applicants are required to attend an interview with a citizenship official to verify their identity and all their original documents submitted in support of their application.

Language and knowledge requirements for deaf applicants

Both language and knowledge requirements must be met for all applicants between the ages of 18 and 54 inclusive. However, a waiver for language and/or knowledge can be requested on compassionate grounds. This section addresses how to accommodate deaf applicants and when an applicant can be offered the option for requesting a waiver as an alternative.

Language [paragraph 5(1)(d)]

Applicants who are deaf and can provide one of the upfront proofs of language ability for citizenship are instructed to do so on the application form. However, if they are prevented from submitting such evidence, they can self-identify on the application form and must provide other supporting documents to assist decision makers in understanding the basis of their claim. Acceptable supporting evidence is an audiogram issued by a Canadian audiologist with a letter issued by the same audiologist attesting that the individual is deaf and has severe to profound hearing loss, with little or no residual hearing, including an explanation as to whether, and to what extent this impacts their ability to listen and/or speak.

If an applicant understands basic questions by reading text or reading a citizenship officer’s lips, which can be demonstrated by responding in writing in English or French or by signing in American Sign Language (ASL) or Quebec Sign Language (LSQ), the waiver of the language requirement is not necessary.

However, if an applicant cannot understand basic questions by reading text or reading lips and cannot respond through writing in English or French or by signing in ASL or LSQ, the language waiver is necessary. The applicant should be asked to submit a medical opinion provided by their physician confirming that the language requirement would be difficult to meet, given the challenges of learning and practising a new language (i.e., writing English or French, or signing in ASL or LSQ) when deaf.

Knowledge [paragraph 5(1)(e)]

Many deaf applicants would not be prevented from taking the written knowledge test because of their deafness. If they cannot read English or French, see the instructions on citizenship knowledge testing, as the applicant should be given the option of having their ASL or LSQ interpreter with them during the administration of the test. If the applicant declines this option, they should be referred to a citizenship officer for a knowledge hearing, where an ASL or LSQ interpreter will be allowed for translating communication between the citizenship officer and the applicant.

If the applicant’s condition is such that they are not able to learn to read English or French due to their deafness and, consequently, cannot learn the content of the study guide (Discover Canada), the applicant should be informed of the option of requesting a waiver. If the waiver is requested, the applicant should be asked to provide a medical opinion to the effect that their condition is such that it is not possible to learn the content of the study guide.

Waiver of the Oath

The requirement of taking the Oath of Citizenship may be waived on compassionate grounds if an applicant is prevented from understanding the significance of taking the Oath of Citizenship by reason of a mental disability.

In such cases, the applicant is required to

• submit evidence (i.e., completed medical opinion form and supporting documentation) of the mental disability; and
• provide evidence of the identity of the legal guardian applying on behalf of the applicant.

Further considerations

• Examples of documents to help an officer determine if an applicant has the mental ability but is unable to repeat the Oath: medical opinion, affidavit, specialist’s report.
• The CMB will use their judgment and will either waive the Oath or request further information from the applicant’s physician if a doctor completes the medical opinion and indicates “No” to the following question: In your opinion, does your patient suffer from a mental disability that prevents them from
  1. appreciating the significance of the Oath, and
  2. appreciating the consequences of acquiring Canadian citizenship?

The Minister also has the discretion to waive, on compassionate grounds, the requirement to take the Oath of Citizenship for minors 14 years of age or older and for minors who are applying under subsection 5(1).

In the event the Oath requirement is waived, the officer must confirm the identity of the applicant in person before granting citizenship. The certificate is given in person or mailed to the applicant’s guardian.

See Guardianship.

Waiver of the application of paragraph 22(1)(b.1)

Subsection 22(1.1) provides that the Minister may, at their discretion, waive the application of paragraph 22(1)(b.1) on compassionate grounds. A waiver under this provision may be considered where the applicant is currently charged with, on trial for, subject to or party to an appeal relating to an offence committed outside Canada that, if committed in Canada, would constitute an indictable offence under any Act of Parliament in the following situations:

• the applicant is facing an unfounded charge outside Canada; or
• due to the judicial process in the foreign jurisdiction, it is unlikely that the applicant will ever receive a trial.

The above list is not exhaustive. In cases where an officer is of the opinion that the charge against the individual will unlikely be dealt with (essentially resulting in the individual always being subject to this prohibition) and there exist compassionate grounds to override the prohibition, a waiver consideration may be warranted.

Subsection 22(1.1) may apply to any person, whether adult or minor, applying under subsection 5(1), (2), (4), or 11(1).

If an officer is assessing a case where a waiver under subsection 22(1.1) has been requested by the client or if the officer is of the opinion that a particular case may warrant consideration for a waiver, the case is to be referred to the CMB for assessment.

Waiver of the application of subsection 22(4): prohibitions – acts against Canada’s national interests

Subsection 22(5) may apply to any person, whether adult or minor, applying under subsection 5(1), (2), (4), or 11(1).

All cases where a prohibition under subsection 22(4) could apply, whether or not the particular case warrants consideration for a waiver under subsection 22(5), must be referred to the CMB for assessment of the prohibition and the waiver, if applicable.