Humanitarian and compassionate: Intake and who may apply

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

How applicants apply

Submitting a request

In Canada: A request under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA) in Canada for an exemption based on humanitarian and compassionate (H&C) or public policy consideration (IMM 5283) must accompany an application for permanent residence in Canada (IMM 0008). The application must be submitted in accordance with the requirements specified in section R10 of the Immigration and Refugee Protection Regulations (IRPR).

Overseas: applicants must use one of the existing departmental application forms for the three immigration classes (family, economic or refugee) and provide additional written information in support of their request for consideration under subsection A25(1).

Who may apply

Foreign nationals who are inadmissible or who do not meet the requirements of the Act or Regulations may make a written request for consideration under subsection A25(1). There are some restrictions with respect to examination of applications for H&C consideration. The restrictions are explained in the following charts.

Fees

Processing fees

In Canada: Fees must be collected for all applications made under subsection A25(1), before the application can be examined (A25(1.1) and R307).

Overseas: processing fees pertaining to the application for a permanent resident visa must be paid before an application may be considered. The fee cannot be refunded even if the application is refused.

In the case of someone who applies in the refugee classes overseas and requests H&C consideration, there are no fees for processing an application for a permanent resident visa in the refugee classes. However, there are processing fees for H&C so they must be collected before an application is examined.

Restrictions on examination of applications

There are a number of restrictions on examination of H&C applications including:

Certain persons who have an outstanding H&C request

When the H&C application is received on or after June 29, 2010, and the applicant has… then the H&C application…
a pending H&C application (this could include an H&C request made in the context of another type of PR applicationFootnote 1)
  • should NOT be examined. There are no exceptions
  • return fee and application

Inadmissibilities for which an exemption may not be requested

When the H&C application is received on or after June 19, 2013 and the applicant… then the H&C application…
is found inadmissible under section A34, A35 or A37
  • should NOT be examined. There are no exceptions
  • return fee and application, provided processing has NOT begun
is suspected to be inadmissible under section A34, A35 or A37, but a final determination has not been made
  • should be sent to the BRO-V Security Unit for assessment of the suspected inadmissibility. Keep the fees.
  • if the applicant is found inadmissible under section A34, 35 or 37, refuse the application
  • if applicant is not inadmissible, examine the H&C request.

Other restrictions on H&C applications

When an H&C application is received and the person… Then the H&C application…
is a permanent resident or Canadian citizen at the time application is received
  • should NOT be examined. There are no exceptions
  • return fee and application
became a permanent resident or Canadian citizen after processing of the application has begun
  • should NOT be examined. There are no exceptions
  • send refusal letter and keep the fee
is a former permanent resident or Canadian citizen who has lost their status
  • should be examined if loss of status has been confirmed
  • if loss of status has not been confirmed, return the application and the fee to the applicant (do not hold the application open while loss of status is being examined)

People who have made a refugee claim

If a person has filed a refugee claim in Canada, they may be subject to a bar on access to H&C consideration (both in Canada and overseas). Specifically, a person is barred from accessing H&C if they have

  • a refugee claim that is pending before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB)
  • made a claim for refugee protection that was determined to be ineligible to be referred to the RPD, and they have a pending pre-removal risk assessment (PRRA) application

Similarly, if a person has filed a refugee claim with the RPD that was rejected, determined to be abandoned or determined to be withdrawn after substantive evidence has been heardFootnote 2 , they are barred from H&C consideration if less than 12 months has passed since the date of the

  • RPD decision in cases where there has been no appeal to the Refugee Appeal Division (RAD) or application for leave and judicial review submitted to the Federal Court
  • latest decision in any process in cases where there has been an appeal to the Refugee Appeal Division (RAD) or application for leave and judicial review submitted to the Federal Court

See the following table for further restrictions and exceptions to the bar:

Exceptions to the bar
H&C application scenario H&C application next steps Exceptions
The applicant has a pending refugee claim.
  • The application should not be examined.
  • The fee and application are to be returned.
None
All of the following apply to the applicant:
  • They have received a negative decision on a refugee claim from the RPD.
  • They have not appealed to the RAD.
  • They have not applied for leave and judicial review of the decision at the Federal Court.
  • The application should not be examined until 12 months has passed since the date of the RPD decision.
  • The fee and application are to be returned.

An exception should be applied where removal of the applicant would result in either of the following circumstances:

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

The fee is to be kept, and the request for an exception is to be examined.

The applicant has received a negative decision on a refugee claim from the RPD and either of the following has taken place:

  • an appeal was made at the RAD
  • an application was made for leave and judicial review of the decision at the Federal Court
  • application should not be examined until 12 months have passed since the date of the last rejection (RPD, RAD, leave or judicial review at the Federal Court)
  • The fee and application are to be returned
The applicant has abandoned a refugee claim.
  • The application should not be examined until 12 months has passed since the date that the IRB determined the claim to be abandoned.
  • The fee and application are to be returned.
The applicant has withdrawn a refugee claim after substantive evidence has been heard.Footnote 3
  • The application should not be examined until 12 months has passed since the date that the IRB determined the claim to be withdrawn.
  • The fee and application are to be returned.
The applicant had a claim that was determined to be ineligible to be referred to the RPD and has a PRRA application that is pending.
  • The application should not be examined.
  • The fee and application are to be returned.
None
The applicant has withdrawn a refugee claim before substantive evidence has been heard at their RPD hearing.
  • The application should be examined.
None

Calculating the 12-month bar

The 12 month bar takes effect on the day the negative decision is made at the RPD (if there is no appeal and no application for leave and judicial review), including the day the claim is determined to be withdrawn after substantive evidence has been heard or abandoned. In cases where there has been an appeal or an application for leave and judicial review of the decision, the bar takes effect on the date of the latest decision from the RPD, RAD or Federal Court. The bar is in effect until the 1 year anniversary of the decision.

Example: If a refugee claimant received a negative decision from the IRB on February 20, 2018, the 12‑month bar would be in effect until February 19, 2019. An H&C application can be examined from this applicant on February 20, 2019.

Immediate application of the bar

Failed refugee claimants are subject to the 12 month bar unless they qualify for an exception on the basis of either of the following:

The bar includes applicants who apply in other categories, including those covered by a public policy, and who also request H&C consideration.

Examples:

  1. A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application is received on July 10, 2018. The H&C application may not be examined, as the bar is in effect until February 20, 2019.
  2. A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application on June 11, 2019. The H&C application may be examined, as the bar is no longer in effect.

Exception: Medical condition posing a risk to life

When an applicant is subject to the 12-month bar and requests an exception due to a medical condition posing a risk to life if the applicant were removed, examine the submissions presented to determine if there is evidence to support the claim that the applicant is suffering from a such a medical condition and that treatment is not available in the applicant’s country of origin. The applicant must demonstrate that removal would lead to an increased risk to life that is real, imminent and foreseeable. Evidence must include both of the following:

  • documentation from the applicant’s doctor(s) confirming that the applicant has been diagnosed with a medical condition that poses a risk to life, the appropriate treatment, and confirmation that treatment for the condition is vital to the applicant’s survival
  • confirmation from a reliable source in the country of origin attesting to the fact that an acceptable treatment is not available in the applicant’s country of origin.

Confirmation of the information provided by the applicant may be necessary. See also Inability of a country to provide medical treatment for further information and links to websites detailing medical treatment available in many countries. In exceptional cases, a Manager may contact Medical Services, NHQ to confirm whether a treatment is available in a particular country.

If you are satisfied that the applicant meets the requirements of the medical exception to the one year bar, do a full global assessment of the H&C request.

See also H&C medical inadmissibility.

If the applicant does not meet the requirements for a medical exception from the one year bar send a letter to the applicant saying that the request for an exception to the 12-month bar on H&C consideration has been refused. Do not refund the fees.

Exception: Best interests of the child

When an applicant is subject to the bar and requests an exception because of best interests of the child, examine the application and submissions to determine if the applicant meets the exception to the 12-month bar. Confirm that both of the following apply:

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

A child under 18 is either the applicant or a dependent of the applicant: The exception applies in cases in which 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 (either a Canadian citizen or foreign national in Canada or abroad). If that is the case, you will complete a full global assessment of the H&C application. The final decision must take into account all factors, including a detailed assessment of best interests of the child.

Exception for BIOC requested in other circumstances: If the applicant identifies a child under 18 but the applicant is not the parent or legal guardian or if the applicant is not under 18 years of age, determine if the 12-month bar applies. To do so determine whether the applicant has demonstrated in the submissions that there would be an adverse effect on the best interests of a child directly affected. If so, make a decision taking into account all factors, including a detailed assessment of best interests of the child.

If the applicant fails to demonstrate that he/she qualifies for an exception to the 12-month bar, send a refusal letter to the applicant. Do not refund the fees.

Intake of applications for family members

Spouse or common-law partner in Canada class (SCLPC): SCLPC applicants who do not satisfy the SCLPC eligibility requirements set out in paragraphs R124(a) and (c) may request H&C consideration. Such applications will be processed under H&C and not as members of the SCLPC class. See also spouses and common-law partners.

Lock-in age for dependent children: The lock-in date for determining the eligibility of dependent children is the date that a completed H&C application is received by IRCC, including correct processing fees. Dependent children must be the appropriate age according to the definition of a dependent child and not a spouse or common-law partner when the application is received.

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