The Humanitarian and Compassionate (H&C) Assessment – The Establishment in Canada
It is worth highlighting that people who applied for humanitarian and compassionate (H&C) consideration in Canada might have spent an extended time in Canada. As such, they might claim to be well established. The officers must be mindful of the fact that there is no hard and fast rule for the period of time that individuals must spend in Canada. However, the authorities expect it to take several years for an individual to achieve a significant degree of establishment.
Therefore, the officers would need to consider the following factors:
- The length of time the applicant has been in Canada
- The circumstances that led the applicant to remain in Canada that were beyond the applicant’s control
- Whether the applicant was subject to a temporary suspension of removal (TSR)
- The degree to which the applicant cooperated with the Government of Canada, especially concerning the travel documents
- Officers would need to contact the Canada Border Services Agency (CBSA) removals unit for obtaining more details on why the applicant does not have a travel document
- Whether the applicant has a history of stable employment
- Whether the applicant demonstrates a pattern of sound financial management
- Whether the applicant has remained in one community or has moved around
- Whether the applicant has integrated into the community via involvement in community organisations, voluntary services or other activities
- Whether the applicant has undertaken any professional, linguistic or other studies that demonstrate the applicant’s integration into Canadian society
- Whether the applicant and the applicant’s family members have a good civil record in Canada
- This would typically mean that the applicant and the applicant’s family members have no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse
Officers would typically need to consider the applicant’s establishment up to the time of the Stage 1 assessment. It is worth highlighting that the fact that the applicant has some degree of establishment is not necessarily sufficient for satisfying the hardship test. Officers would need to refer to the following cases:
- Diaz Ruiz v Canada (Minister of Citizenship and Immigration), 2006 FC 465, 147 A C W S (3d) 1050 (F C)
- Lee v Canada (Minister of Citizenship and Immigration), 2005 FC 413, 138 A C W S (3d) 350 (F C)
In some cases, the officers might find that the situation warrants positive humanitarian and compassionate (H&C) consideration when:
- The period of inability to leave Canada because of circumstances beyond the applicant’s control is of considerable duration and,
- Evidence exists that indicates a significant degree of establishment in Canada
The Definition of Circumstances Beyond the Applicant’s Control
- Circumstances beyond the applicant’s control
- The applicant’s home country was subject to a Temporary Suspension of Removals (TSRs) i.e. R230
- An applicant was awaiting a decision on an immigration application and spent several years in Canada with status e.g. the live-in caregiver program
- In such cases, the officers could consider the applicant’s ability to leave Canada to be due to circumstances beyond the applicant’s control
- Circumstances not beyond the applicant’s control
- An applicant in Canada for several years, is unwilling to sign or provide information for a passport application
- An applicant loses or destroys the travel documents wilfully
- An applicant goes underground and remains in Canada illegally
- In such cases, the authorities would consider the applicant’s inability to leave Canada as not being beyond the control of the applicant
- As such, the officers would view these circumstances as a strong negative factor
- For more details, officers would need to refer to the Legault decision
Note:
- This provision applies to all applications in Canada
