Humanitarian and compassionate grounds (H&C): when a request will not be examined at all

In one line

Humanitarian and compassionate considerations (H&C) are set out in IRPA s.25. Where the request comes from a foreign national in Canada, the Minister must examine their circumstances; where it comes from outside Canada, the Minister may. "Must" governs the examination step; whether status is granted uses "may". Before the examination there is a further gate: the five situations listed in s.25(1.2), where the Minister may not examine the request. The two most often hit: a second request cannot be filed while an earlier one is still being processed; and where a refugee claim was rejected, declared abandoned, or withdrawn after substantive evidence was heard, a request cannot be filed until twelve months have passed from that day.

What this route can give

The opening sentence of s.25 of the Immigration and Refugee Protection Act (IRPA) marks out the whole scope:

25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35, 35.1 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35, 35.1 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

There are four layers in it.

First, the wording differs inside and outside Canada. For a foreign national in Canada who applies for permanent resident status and who is inadmissible (other than under s.34, s.35, s.35.1 or s.37) or who does not meet the requirements of this Act, the provision uses must: the Minister must examine their circumstances. For a foreign national outside Canada applying for a permanent resident visa, it uses may.

Second, what "must" actually requires. The verb that follows must is examine. The clause about granting status uses may grant. Examining is the act the Minister has to perform; on whether anything is granted once that is done, the provision promises nothing. This layer is the point on the whole route most often read as more than it says.

Third, there are two things that can be granted. One is permanent resident status itself. The other is an exemption from any applicable criteria or obligations of this Act. The second is the more common one in practice: what a file is stuck on is often one specific requirement that cannot be met.

Fourth, the interests of a child have to be taken into account. The closing clause states that the best interests of a child directly affected are to be taken into account.

The s.34, s.35, s.35.1 and s.37 in the brackets above are carved out by the provision itself: a person found inadmissible under any of them falls outside the scope of s.25(1), whether in Canada or outside it. What each of those sections covers is not set out on this page.

On fees, s.25(1.1) adds a separate sentence:

The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

Where the applicable fees have not been paid in full, the request has not formally reached the Minister.

When the Minister may not examine the request

The opening words of s.25(1), Subject to subsection (1.2), point to this passage:

(1.2) The Minister may not examine the request if
(a) the foreign national has already made such a request and the request is pending;
(a.1) the request is for an exemption from any of the criteria or obligations of Division 0.1;
(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division;
(b.1) the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending; or
(c) subject to subsection (1.21), less than 12 months have passed since …

The wording used is may not examine. Where one of these five situations applies, the fee can still be paid and the submit button can still be clicked; the file simply never reaches the stage where whether the humanitarian and compassionate grounds hold is decided.

(a) is the one most often hit in practice. Where one H&C request has been filed and is still being processed, a second one cannot be filed. Sending in another when no answer comes is a natural reaction, and the provision closes it off here.

(c) is the twelve-month waiting period. Where a refugee claim was rejected, withdrawn after substantive evidence was heard, or declared abandoned, an H&C request cannot be filed until twelve months have passed from that point. The provision sets out the start date in fine detail, so it has a section of its own below.

Which day the twelve months start from

The provision splits the start date into two cases:

(i) the day on which the foreign national's claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or
(ii) in any other case, the latest of
(A) the day on which the … claim … was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,
(B) the day on which the … claim … was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and
(C) the day on which the Federal Court refused the … application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection.

The first case is simple: where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, the count runs from the day the RPD rejected the claim, determined it to be withdrawn, or declared it abandoned.

The second case is every other situation. The provision uses the latest of — the latest of those days.

Put the three days side by side and the count runs from whichever is latest. For someone who went through an appeal and then to the Federal Court, the latest of them falls after the RPD day, and possibly a long way after it.

Read this the wrong way round and the consequence is concrete: counting twelve months from the RPD day and filing, when the real date is still far off, puts the request inside (1.2)(c), where the Minister may not examine it.

The two exceptions to the twelve-month rule

(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national
(a) 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; or
(b) whose removal would have an adverse effect on the best interests of a child directly affected.

Two exceptions. The first is a person who, in the case of removal, would face a risk to their life caused by the inability of each of their countries of nationality (or, where they have no country of nationality, their country of former habitual residence) to provide adequate health or medical care. The second is a person whose removal would have an adverse effect on the best interests of a child directly affected.

The wording in the first has to be read word by word: each of their countries of nationality, every country of nationality. Where a person holds more than one nationality, what the provision requires is that every one of them be unable to provide it; one of them being unable to does not fall within this exception.

The boundary also has to be seen clearly. What these two exceptions lift is only the twelve-month waiting period in (1.2)(c). The other items in (1.2), including a request already being processed and the ones about refugee proceedings still pending, are not lifted by these two exceptions. Someone who already has an H&C request in processing cannot file a second one, even where their situation fits (1.21)(a) or (b).

There is a further layer: what the exception opens is the "may not examine" gate. Once that gate is open the request goes to examination, and whether the humanitarian and compassionate grounds hold is still a separate question.

What counts and what does not count in the examination

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

This subsection applies only to a foreign national in Canada.

One prohibition, one requirement:

• What may not be considered: the factors that are taken into account in determining whether a person is a Convention refugee under s.96 or a person in need of protection under s.97(1).
• What must be considered: elements related to the hardships that affect that applicant.

That is as far as the provision goes. The line between the two is fine, and which side any particular passage of a file falls on is a case-by-case judgment with no general formula; applying a general formula is neither accurate nor a safe way to build a file.

One last restriction is set out in s.25(2):

The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national.

What this sentence says is: for a person falling within s.9(1), where they do not meet the province's selection criteria applicable to them, the Minister may not grant permanent resident status. Which situations s.9(1) refers to is not set out on this page.

Where the difficulty lies

The provisions themselves can be looked up: the five bars, the two exceptions and the three candidate dates are all written down. What is hard is matching the steps a person has actually been through to the right cell in the provision.

A few places go wrong especially often. How far the refugee track went, whether it reached the RAD, whether an application for leave was ever filed with the Federal Court — those decide whether the twelve months run under (i) or from the latest of the days in (ii), and those two answers are not the same day. The two exceptions in (1.21) look broad; whether either one is available has to be checked against the provision one word at a time.

The cost of getting it wrong is also asymmetric. Count the date too late and several months are spent waiting for nothing. Count it too early and the request lands inside (1.2), where the Minister may not examine it, with the fee and the time already spent.

There is one more layer to be clear about before starting. The entrance to this route reads "must examine"; the exit reads "may grant". The provision does not list which grounds will hold, and there is no threshold score; a complete file is not the same thing as a request that gets through.

For the routes available after a refusal, see After a refusal: reconsideration, reapplying, or judicial review; where status has already expired, see the 90-day window to restore status.

To lay out your own timeline and the proceedings you have been through and check them against the provisions, consultation rates are here.

Common questions