Dealing with Family Relationships

The Humanitarian and Compassionate (H&C) Assessment – Dealing with Family Relationships

The Charter and the International Covenant on Civil and Political Rights (ICCPR) enshrine certain humanitarian and compassionate (H&C) values. These values help in respecting the objectives of the Immigration and Refugee Protection Act (IRPA). This is why officers would need to consider the relevant principles specified in the International Covenant on Civil and Political Rights (ICCPR) such as:

• The non-interference in family life i.e. Article 17
• The importance and protection of a family unit by society and the State i.e. Article 23
• The child’s right to the relevant measures of protection as necessitated by the child’s minor status, on the part of the family, society and the State i.e. Article 24

It is not necessary for the officers to specifically refer to or analyse the international human rights instruments to which Canada is a signatory. As long as the officers can address the substance of the issues raised, this is more than enough. For more details, officers would need to refer to the case Okoloubu v Canada (Minister of Citizenship and Immigration); 2008 CarswellNat 3852; 2008 FCA 326.

The Factors to Consider

• The factors related to the country of origin
  • An applicant’s links with their country of origin – this includes:
    • The length of time they resided in their country of origin
    • Their ability to speak the language
    • The return visits since their arrival in Canada and,
    • The family members remaining in the country of origin
  • The family members’ links to the applicant’s country of origin, if applicable – this includes:
    • The length of time they spent in the applicant’s country of origin
    • Their ability to speak the language of the applicant’s country of origin and,
    • The other family members remaining in the applicant’s country of origin
• The factors related to current immigration or citizenship status
  • The removal of an individual from Canada would have an effect on family members who have the legal right to remain such as permanent residents or Canadian citizens
  • Family members with legal status could typically include:
    • The spouse or common-law partner
    • Children
    • Parents and,
    • Siblings
  • It is worth mentioning that the lengthy separation of family members could create hardships that might warrant a positive Stage 1 assessment
  • For this, the officers would need to consider:
    • The current immigration or citizenship status of each member of the family
    • The applicant’s immigration status at the time of formation of the family links i.e. the status at the time of marriage, having children etc. and,
    • The original status and the circumstances under which the applicant lost the status, in case the applicant lost the immigration status after the formation of the family links
• The factors related to links with family members
  • Canada’s interest in light of the legislative objective to maintain and protect the health, safety and good order of Canadian society
  • Family interests in light of the legislative objective to facilitate family reunification
  • The circumstances of all family members, with special emphasis on the interests and situation of any dependent children with legal status in Canada
  • The particular circumstances of any children of the applicant e.g. their age, needs, health, emotional development etc.
  • The financial dependence of the family members
  • Whether the applicant could have been a member of the family class if the applicant had applied outside Canada
  • The links with family members such as children, spouse, parents, siblings etc. in terms of an ongoing relationship as opposed to a simple biological fact of relationship
  • An applicant’s place of residence in relation to the family members, with special attention to their children
  • Any previous period of separation (if applicable, then the duration and the reason for the separation as well)
  • Any court order concerning custody arrangements (if applicable)
  • If the applicant is the non-custodial parent, whether the applicant has been exercising the given visitation rights
  • The information provided in the family court documents about the family’s circumstances
  • The degree of psychological or emotional support in relation to the other family members
  • Whether the family will have the option of being together in another country (or whether they would be able to maintain contact) and,
  • The impact on the family members (especially the children) if the authorities remove the applicant
  • It is worth highlighting that adult applicants have the ability to present submissions from, or on behalf of, members of their family, in which they set out the views of the family members
    • When submitting these views for their children, the applicants would need to ensure that these submissions are in accordance with the age and maturity levels of the child
    • These submissions would need to recognise the increasing capacity of children to present their own views as they mature
• The factors concerning family violence
  • Situations could arise where family members in Canada, especially spouses, might feel compelled to stay in the relationship or abusive situation to remain in Canada
  • This is especially so for spouses who are in abusive relationships and are not permanent residents or Canadian citizens
  • These situations could make these individuals face great hardships
  • In this scenario, officers would need to be sensitive to situations where the spouse (or another family member) of a Canadian citizen or permanent resident leaves an abusive relationship
  • In many cases, this would mean that the individual does not have an approved family class sponsorship
  • To ascertain these cases appropriately, the officers would need to consider:
    • Information that indicates the existence of abuse such as:
      • Police incident reports
      • Charges or convictions
      • Reports from shelters for abused women and,
      • Medical reports
    • The degree of establishment in Canada, if applicable
    • The hardship that would result in case the applicant had to leave Canada
    • The laws, customs and culture in the applicant’s country of origin
    • The support of relatives and friends in the applicant’s home country and,
    • Whether the applicant has children in Canada and / or is pregnant
• Sponsorships – Family Class applicants for humanitarian and compassionate (H&C) overseas
  • Officers could come across applicants in the family class who have an ineligible sponsor
  • These applicants would need to request humanitarian and compassionate (H&C) consideration for overcoming the requirement of having an eligible sponsor
  • However, only foreign nationals have the ability to request for humanitarian and compassionate (H&C) consideration, in accordance with the provisions specified in A25 (1)
  • The sponsor, who could be a permanent resident or a Canadian citizen, cannot request humanitarian and compassionate (H&C) consideration
  • In such cases, the sponsor would need to indicate in the appropriate box on the sponsorship application that, in case the authorities find the sponsor ineligible, the sponsor would require the authorities to send their applications to the visa office for processing, along with the application for a permanent resident visa from the foreign national they applied to sponsor
  • The applicant would need to request an exemption from the requirement of having an eligible sponsor
  • When they assess such cases, the officers would need to consider factors such as whether the applicant would be able to help the sponsor to become self-supporting
  • In some cases, the sponsor might be eligible, but the applicant might be ineligible
  • In these cases, the foreign national would need to request humanitarian and compassionate (H&C) consideration in writing

Note:

• This provision applies to all overseas applications as well as applications in Canada