30 Humanitarian and Compassionate Application
A Humanitarian and Compassionate Application (H&C) is an application to the Immigration, Refugees and Citizenship Canada (IRCC) seeking Permanent Resident (PR)) status in Canada, on the grounds of “humanitarian and compassionate” reasons. The Applicant has to demonstrate the consequences they would face if they were to return to their own countries. The H&C application is a two-stage process: first, getting the approval to apply for PR on a H&C basis and second, to get approval as Canadian PR status. There are two stages of approval. IRCC has a wide “discretion” in such applications, but they are obligated to consider all evidence presented, and the Best Interest of the Child involved. If the Applicant has connections with Canada or has been contributing meaningfully, it could be supportive of the application. The IRCC has to consider family violence as a factor but unlike Refugee applications, it is not a mandatory consideration. An unsuccessful refugee applicant can apply for H&C after completion of one-year bar period from the resolution of their refugee claim. Pending H&C Application does not automatically give rise to the right to stay in Canada.
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A citizen of a country other than Canada who has been given the right to immigrate to Canada and stay in the country permanently
The “best interests of the child” is a principle stated in law that allows decision-making authorities to be child-focussed. The ‘best interest’ test provides discretion to a judge to decide the disputes involving children within the legislative framework, keeping the child’s interest at the heart of the decision. Simply put, the judge will consider the evidence provided by each party but make the decision based on what is best for the child. The examples of family law cases involving best interest of children analysis are as follows: cases involving issues of custody and access or variation thereof, exclusive possession of matrimonial home, or mobility cases. If the parties before the family court are married, they are governed by the federal legislation i.e. the Divorce Act. If they are not married, the provincial Act (In the case of Ontario, the Children’s Law Reform Act) would provide the framework and specified criteria for deciding what is in the best interest of the child. In family cases involving domestic violence, it allows the court to consider past conduct of a parent when it involves violence or abuse against a spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.
The Immigration and Refugee Protection Act (IRPA) refers to the need to take "into account the best interests of a child directly affected". Thus, the decisions of Immigration, Refugees and Citizenship Canada (IRCC) or Immigration Refugee Board (IRB) must include an assessment of the best interests of a child who would be directly affected in an Humanitarian and Compassionate Application for permanent residence, or Refugee claim or citizenship application involving children.
Canada has signed International human rights instruments which require children's best interests be given priority consideration courts, tribunals or other institutions.
Refugee is a term used for, “a person who flees to a foreign country or power to escape danger or persecution” (Merriam-Webster Dictionary, n.d.). A Convention Refugee is an individual that is required to leave their country of residence out of fear. Specifically, if the fear is based on discrimination due to an individual’s race, religion, political opinion, nationality, or social group.
The individual who initiates legal action (Application) in a Court.
