Receiving a refusal on a permanent residence application based on humanitarian and compassionate considerations often marks a significant turning point in a person's immigration journey. While certain options may still be available, the recourse options are limited and must be exercised within very short deadlines. It is therefore essential to act quickly in order to preserve your rights.
Key Takeaways
- An IRCC refusal of an H&C (humanitarian and compassionate considerations) application can be challenged by way of judicial review before the Federal Court of Canada.
- The deadline for filing this application is 15 days from the receipt of the refusal, when the decision was made in Canada.
- There is no automatic right of appeal following an H&C refusal: unlike refugee claims, no administrative appeal body is provided for.
- In the event of an imminent removal, a stay of removal can be requested simultaneously from the Federal Court.
- Consulting an immigration lawyer upon receipt of the refusal is strongly recommended: procedural errors in this type of recourse are final.
How Are Humanitarian and Compassionate Applications Assessed?
Applications based on humanitarian and compassionate considerations are assessed on a case-by-case basis according to the full set of circumstances specific to the applicant. Immigration, Refugees and Citizenship Canada (IRCC) officers must conduct an overall assessment of favourable and unfavourable factors before rendering their decision.
Assessment Factors
Immigration officers examine each file individually, weighing several factors, including:
- Establishment and ties to Canada: the officer may take into account, among other things, the length of the applicant's stay in Canada, their work history, their integration into the community, and the family, social, and personal ties they have developed there.
- The best interests of any child directly affected by the decision: for example, the child's well-being, stability, development, and the consequences the decision could have on their situation.
- The unusual hardship the applicant would face if removed to their country of origin: country conditions, health status, and personal situation.
An H&C application is an exceptional measure under section 25(1) of the Immigration and Refugee Protection Act (IRPA). The officer has broad discretionary power, and the ordinary hardships associated with removal are generally not sufficient to justify an exemption.
Common Mistakes in H&C Files
Although there is no formula that guarantees the acceptance of an application based on humanitarian and compassionate considerations, certain elements deserve particular attention when preparing the file.
It is generally recommended to present detailed evidence of one's establishment and ties to Canada, to properly document any medical, psychological, or humanitarian consideration invoked, and to clearly explain the consequences a refusal of the application would have. When children are directly affected, their best interests should also be addressed in a precise and well-documented manner.
The more the evidence allows the officer to understand the applicant's particular situation and the reasons justifying the granting of an exemption, the better positioned the officer will be to conduct a thorough assessment of the file.
Refusal of an H&C Application: Is There a Right of Appeal?
Canadian law does not provide for any automatic right of appeal when a permanent residence application based on humanitarian and compassionate considerations is refused. This distinguishes the H&C application from a refugee claim, which may in some cases be appealed before the Refugee Appeal Division (RAD) of the IRB.
Only judicial review before the Federal Court makes it possible to challenge the decision in certain cases. This is not an appeal on the merits, but rather a review of the legality and reasonableness of the decision rendered.
Judicial Review: The Main Recourse After an H&C Refusal
Judicial review before the Federal Court is the primary recourse available after a refusal of an H&C application. It does not directly result in obtaining permanent residence, but it can compel IRCC to reconsider the file if an error of law or fact is established.
What Is Judicial Review in Immigration?
Judicial review is not intended to determine whether the Federal Court would have made the same decision as the IRCC officer. Rather, the Court's role is to verify whether the decision was made in accordance with the law and whether the reasons supporting it are reasonable. It is therefore not a new review of the application on its merits.
Mandatory Deadlines to Respect
⚠️ Critical Deadline: You have 15 days from the receipt of the refusal letter to file your application for leave and for judicial review with the Federal Court, if the decision was made in Canada. This deadline is set out in section 72 of the IRPA.
| Location of the Decision | Deadline to File |
|---|---|
| In Canada | 15 days from the receipt of the refusal |
| Abroad | 60 days from the receipt of the refusal |
After filing the application for leave, the applicant has a deadline to "perfect" their file, meaning to file their supporting documents and legal arguments.
What Can the Federal Court Decide?
If the Court grants judicial review, it does not substitute itself for the IRCC officer and does not itself render a favourable decision on permanent residence. It sends the file back to a different officer, who must redo the assessment taking into account the errors identified.
Requesting a Stay of Removal in Parallel
If a removal date is set, judicial review alone does not automatically suspend the removal measure in the case of an H&C refusal. It is then necessary to simultaneously request a judicial stay of the removal order from the Federal Court.
Can a New H&C Application Be Filed After a Refusal?
It is possible to file a new H&C application after a refusal, subject to certain conditions. This option may be considered when new circumstances have arisen since the initial decision or when the previous file had documentary gaps that could be corrected.
Specific Considerations for Quebec Residents
For people residing in Quebec, an additional particularity must be taken into account. The H&C process is federal and falls exclusively under IRCC's jurisdiction. However, approval of an H&C application by IRCC does not exempt the applicant from the provincial selection process in immigration categories that require a Quebec Selection Certificate (CSQ), issued by the Ministère de l'Immigration, de la Francisation et de l'Intégration (MIFI).
In other words, a person whose H&C application is approved by IRCC will, in certain situations, need to meet Quebec's selection requirements in order to obtain permanent residence. An immigration lawyer can guide you on how these two processes interact based on your specific situation.
Acting Without Delay After an H&C Refusal: The Importance of a Specialized Lawyer
Recourse options following a refusal of a permanent residence application based on humanitarian and compassionate considerations require an immediate response. The 15-day deadline to initiate judicial review is non-extendable in the vast majority of cases, and any procedural error can be final.
The Blain Avocats team has practiced immigration law since 1987 and supports individuals facing administrative and judicial emergency situations: judicial reviews, stay applications, and new H&C applications. Each file is analyzed as a whole to identify the recourse best suited to your situation.
Consult an immigration lawyer as soon as you receive your refusal letter.
FAQ - H&C Application Refusal
What is the deadline to challenge an H&C application refusal before the Federal Court?
The deadline is 15 calendar days from the receipt of the refusal letter when the decision was made in Canada, in accordance with section 72 of the IRPA. This deadline is mandatory, and failure to comply results in the application for leave being declared inadmissible.
Does an H&C refusal automatically stay the execution of a removal?
No. The mere filing or refusal of an application based on humanitarian and compassionate considerations does not automatically suspend a removal order, nor does it prevent its execution. The execution of a removal instead depends on the existence of a valid removal order and the status of any ongoing recourse or proceedings in the applicant's file.
How much does judicial review cost in Canadian immigration proceedings?
Costs include filing fees with the Federal Court as well as legal fees, which vary depending on the complexity of the file. An immigration lawyer can inform you of the expected costs during an initial consultation.
Can a lawyer guarantee the success of judicial review after an H&C refusal?
No. No legal professional can guarantee the outcome of a judicial proceeding. A lawyer can assess the strength of the grounds for review, prepare a thorough file, and represent you effectively before the Court, but the decision belongs to the judge.
What happens if the Federal Court grants judicial review?
The Court sets aside the initial decision and sends the file back to a different IRCC officer so that a new assessment can be conducted. This does not guarantee permanent residence will be obtained, but it does open the door to a new decision.
