The Changes to Humanitarian and Compassionate Considerations – Protecting Canada’s Immigration System Act

Operational Bulletin 440-B – August 15, 2013

Summary

This Operational Bulletin (OB) contains an overview of the changes to the Humanitarian and Compassionate (H&C) considerations. Section 25 of the Immigration and Refugee Protection Act (IRPA) contains these H&C considerations.

Further, this OB also contains certain guidelines for officers. Officers must use them for evaluating whether they need to assess any application for permanent residence on H&C grounds.

Citizenship and Immigration Canada (CIC) updated this OB on August 16, 2013. The updation provided clarifications on the notices that the Refugee Protection Division (RPD) would need to use. The RPD would use these notices when claimants withdrew their applications after the hearing of substantive evidences. The section titled “Restrictions on the Examination of Humanitarian and Compassionate (H&C) Applications” contains further information on this.

Background

On June 28, 2012, the government received royal assent on Protecting Canada’s Immigration System Act (PCISA). The royal assent implemented changes to the existing H&C provisions. These included:

• Debarring access to H&C considerations (in Canada as well as at a visa office) if:
• An applicant has a pending refugee claim or,
• Less than 12 months have passed since the applicant received the last negative decision from the Immigration and Refugee Board of Canada (IRB)
• This 12-month bar also applied to claims, which the IRB deemed as:
• Withdrawn or,
• Abandoned

Subsection 25(1.21) of the IRPA allows for exceptions to this 12-month bar. It stipulates that officers could provide exceptions to applicants who can demonstrate that:

• Their lives would be at risk upon removal because of the inability of their native countries to provide them with adequate access to medical or health care or,
• Their removal would have an adverse impact on the best interests of a child (BIOC) who is directly affected by the removal (the child must be below 18 years of age)

Applicants can only make requests for H&C consideration in the context of:

• Applications for permanent residence or,
• Applications for a Permanent Residence Visa

These H&C consideration requests could aim at obtaining:

• Permanent residence or,
• An exemption from the obligations of the IRPA or,
• An exemption from certain applicable criteria

Note:

• The scope of native countries also includes a country of habitual residence, in case the applicant does not have a country of nationality

Restrictions on the Examination of Humanitarian and Compassionate (H&C) Applications

Restrictions on the examination of H&C applications includes:

• Protecting Canada’s Immigration System Act – Royal Assent June 29, 2010
• Officers would not examine any H&C applications if:
• An application is received on or after June 29, 2010 and,
• The applicant has a pending H&C application (including any H&C request made in the context of another kind of permanent residence application)
• In this scenario, officers would return both, the application and the fees
• There are no exceptions to this
• Protecting Canada’s Immigration System Act – Royal Assent June 28, 2012
• Officers would not examine any H&C applications if:
• An application is received on or after June 28, 2012 and,
• The applicant has a pending H&C application (including any H&C request made in the context of another kind of permanent residence application)
• In this scenario, officers would return both, the application and the fees
• There are no exceptions to this
• Officers would not examine the H&C application for a period of 12 months after the date of the last decision, if:

• An application is received on or after June 28, 2012 and,
• The applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD)
• In this scenario, officers would return both, the application and the fees
• Officers could provide exceptions to applicants who can demonstrate that:
• Their lives would be at risk upon removal because of the inability of their native countries to provide them with adequate access to medical or health care or,
• Their removal would have an adverse impact on the best interests of a child (BIOC) who is directly affected by the removal (the child must be below 18 years of age)
• Officers would retain the fees and process the application if these exceptions apply
• Officers would not examine the H&C application for a period of 12 months after the date that the IRB deemed the claim as being abandoned, if:

• An application is received on or after June 28, 2012 and,
• The applicant has abandoned a refugee claim
• In this scenario, officers would return both, the application and the fees
• Officers could provide exceptions to applicants who can demonstrate that:
• Their lives would be at risk upon removal because of the inability of their native countries to provide them with adequate access to medical or health care or,
• Their removal would have an adverse impact on the best interests of a child (BIOC) who is directly affected by the removal (the child must be below 18 years of age)
• Officers would retain the fees and process the application if these exceptions apply
• Officers would not examine the H&C application for a period of 12 months after the date that the IRB deemed the claim as being withdrawn, if:

• An application is received on or after June 28, 2012 and,
• The applicant has withdrawn a refugee claim AFTER the hearing of substantive evidence at their RPD hearing
• In this scenario, officers would return both, the application and the fees
• Officers could provide exceptions to applicants who can demonstrate that:
• Their lives would be at risk upon removal because of the inability of their native countries to provide them with adequate access to medical or health care or,
• Their removal would have an adverse impact on the best interests of a child (BIOC) who is directly affected by the removal (the child must be below 18 years of age)
• Officers would retain the fees and process the application if these exceptions apply
• Officers would not examine the H&C application for a period of five years (based on the guidelines specified in OB 440-D titled “Designated Foreign Nationals: Restrictions on Applications for Permanent Residence”), if:

• An application is received on or after June 28, 2012 and,
• The applicant has been determined as being a “Designated foreign national”
• There are no exceptions to this 
• Officers would examine any H&C applications if:

• An application is received on or after June 28, 2012 and,
• The applicant has withdrawn a refugee claim BEFORE the hearing of substantive evidence at their RPD hearing
• There are no exceptions to this 

Note:

• Officers would not consider any requests for an exemption to the 12-month bar based on humanitarian and compassionate considerations beyond the:
• BIOC exemption and the,
• Medical exemption
• The phrase “Hearing of substantive evidence” indicates that the RPD has begun examining the merits of the claim
• If the RPD used “Notice of Decision: Application to Withdraw a Claim” numbers RPD.24.04 or RPD.24.05, it shows that the applicants withdrew their claims after substantive evidence was heard
• In these circumstances, the 12-month bar applies (according to A25(1.2)(c)
• If there is no Notice of Decision on the file, the officer would:
• Contact the Toronto Reviews and Interventions Unit (ONT-R&I-Tor-Ref-Triage@cic.gc.ca) for a copy of the Notice of Decision (applicable for RPD decisions on or after December 15, 2012) or,
• Enquire with the RPD office where the withdrawal took place for decisions prior to December 15, 2012

The Process for Calculating the 12-Month Bar

The 12-month bar commences from the time the IRB pronounces the last negative decision. This is regardless of whether this takes place at the RPD or the RAD. This bar stays in force until one year after the decision. Officers would need to refer to the “Decision Date” field in FOSS. This would confirm the date from which they need to calculate the 12-month bar.

Example: The IRB announced its last negative decision to a refugee claimant on March 27, 2013. Therefore, the 12-month bar commences on March 27, 2013. It stays in force until March 26, 2014. Thus, officers can only examine any H&C requests from this applicant on or after March 27, 2014.

Immediate Application of the 12-Month Bar

The 12-month bar would apply to failed refugee claimants. This includes those applicants that have refugee claims rejected before Royal Assent of the PCISA (June 28, 2012). The only time these claimants could gain exceptions to this 12-month bar is when they can prove that:

• Their lives would be at risk upon removal because of the inability of their native countries to provide them with adequate access to medical or health care or,
• Their removal would have an adverse impact on the best interests of a child (BIOC) who is directly affected by the removal (the child must be below 18 years of age)

This is also applicable to applicants covered by public policy, who request for H&C consideration. However, officers would examine H&C applications they receive prior to June 28, 2012. 

Other possible scenarios for the application of the 12-month bar could include the following situations.

• Scenario 1: H&C Request Received After Negative IRB Decision (but Before June 28, 2012)
• The IRB pronounces a negative decision to a refugee claimant on March 10, 2012
• The claimant submits an H&C application on May 15, 2012 (before the Royal Assent of the PCISA on June 28, 2012)
• The 12-month H&C bar would not be applicable in this scenario
• Scenario 2: H&C Request Received After Negative IRB Decision (and On or After June 28, 2012)
• The IRB pronounces a negative decision to a refugee claimant on May 10, 2012
• The claimant submits an H&C application on July 10 15, 2012
• The H&C application does not mention any medical or BIOC exemption
• The 12-month H&C bar would apply in this scenario and would be in force until May 09, 2013
• Officers would return the fee and the application
• Scenario 3: Inadmissibility of Spouse or Common-law Partner Applicant
• Officers receive an application from a spouse under the public policy (this is not subject to the 12-month bar)
• The applicant requires an H&C exemption because of any inadmissibility e.g. criminality
• The IRB pronounced a negative decision to the applicant on May 10, 2012
• If the H&C request associated with the spousal public policy application was made on or after June 28, 2012, the foreign national would need to wait for the end of the 12-month bar on requests for H&C consideration
• If the H&C application does not mention any medical or BIOC exemption, the 12-month H&C bar would apply in this scenario and would be in force until May 09, 2013
• Officers would not take any H&C factors into consideration while rendering a decision on the FCH
• Scenario 4: Receiving the Application vis-à-vis Examining the Application
• The CIC receives an application on July 30, 2013
• The IRB pronounces a negative decision to a refugee claimant on August 15, 2012
• The 12-month H&C bar was valid until August 14, 2013
• Citizenship and Immigration Canada (CIC) processes the application at intake on August 16, 2013
• Officers can examine the application in this scenario, as the 12-month bar is no longer applicable 

Processing Applications for Permanent Residence Requesting Humanitarian and Compassionate (H&C) Consideration

Intake Review by Clerk – H&C Applications Received on or after June 28, 2012 

The Backlog Reduction Office in Vancouver (BRO-V) continues to be the central intake office for the network. Therefore, officers would keep submitting all H&C applications to BRO-V. During the intake stage at the BRO-V, officers would conduct certain checks and actions. They would do these for applications received on or after June 28, 2012. Each check would have a corresponding action. Officers would take the following actions.

• If the H&C applicant has a pending refugee claim
• The officer would:
• Send a letter of non-acceptance and,
• Issue a fee refund to the applicant
• If the H&C applicant has been tagged as a designated foreign national in FOSS or GCMS (a 5-year bar applies on applicants that prevents them from applying for permanent residence in this scenario) and the 5-year bar has not lapsed
• The officer would:
• Send a letter of non-acceptance and,
• Issue a fee refund to the applicant
• If, within the last 12 months, a refugee claim was rejected, abandoned or withdrawn after the hearing of substantive evidence
• The officer would:
• Review the application for eligibility to check whether the applicant has requested for an exception
• While completing the Supplementary Information Form (IMM 5283), applicants would need to indicate whether they are applying for an exception to the bar based on medical or BIOC considerations
• They could do this by checking the appropriate box on the form
• Assign the application to an officer for further assessment if the applicant requests for an exception based on medical considerations or BIOC
• Send a letter of non-acceptance as well as return the application and the fee to the applicant if:
• The applicant does not self-identify on the form (via the check box) and,
• The 12-month bar is in effect

Note:

• The CIC would not retain a copy of the application
• Officers would enter an NCB in the FOSS indicating that the application was returned

Review by an Officer

• Risk to Life Because of a Medical Condition
• Applicants could request for an exception because of a life-threatening medical condition
• In these situations, officers would review the application to evaluate whether there is evidence to support the claim that the applicant’s life would be at risk because of inadequate health or medical care in any of the applicant’s countries of nationality (or the country of former habitual residence, if the applicant does not have a country of nationality)
• The applicants would need to show that:
• The risk is real, imminent and foreseeable and,
• The applicant’s removal would increase the risk to their lives
• The applicant could provide evidence including:
• Documentation from the applicant’s doctors that confirms that the:
• Applicant has been diagnosed with a life-threatening medical condition
• Applicant is taking the appropriate treatment
• Treatment being received by the applicant is critical for the applicant’s survival
• Confirmation from a reliable source that adequate treatment is unavailable in the applicant’s country of origin

• If the officer is satisfied with the evidence provided, the officer could look at a closer examination of the medical exception request
• In these situations, the officer would need to assess the medical factors of the case more closely
• This could include:
• Checking the FOSS or GCMS for previous medical results and,
• Issuing a new medical examination for determination by the Health Branch
• The officer could seek clarifications on whether adequate treatment is available by checking with the:
• Health Branch as well as,
• Independent Research
• If the officer is satisfied, after a closer examination of the medical exception request, that:
• The applicants would face increased risk to their life if they were to be
• Removed to their countries of nationality (or the country of former habitual residence, if the applicant does not have a country of nationality), because of inadequate health or medical care facilities in those countries, and,
• A medical inadmissibility determination has been made, then
• The officer would refer the application to the delegated decision-maker (or the Director of Case Review)
• The Director of Case Review would complete a full global assessment of the H&C request, before arriving at a decision (in accordance with Section 10 of IP5)
• The officer would complete a full global assessment of the H&C application and make a decision in case of a determination that the applicant is not medically inadmissible (in terms of ability and intent)
• Upon assessing the application, if the officer determines that the applicant has not provided sufficient and credible evidence about the medical condition or the treatment, the officer would:

• Refuse the request for an exception to the 12-month bar by providing a written rationale for the refusal
• Send a refusal letter to the applicants
• Advise the applicants that their requests for an exception to the 12-month bar on H&C considerations have been refused
• Detail the reasons on the file, especially those concerning the medical factors associated with the case
• Not issue a refund in these cases

• Adverse Impact on the Best Interests of a Child (BIOC) Directly Affected
• The officer would examine the application and submissions to assess whether the applicant meets the exception criteria for the 12-month H&C bar
• The officer would only do so if:
• The applicant is subject to the 12-month H&C bar and,
• Indications point to or reveal that BIOC factors are applicable in this case
• In these situations, the officer would confirm that:
• The child would be personally affected by the removal (and list the specific reasons as to why the removal would not be in the best interests of the child) and,
• Credible evidence exists to show that the applicant’s removal would also have a corresponding direct and adverse impact on the child
• The exception would apply and the officer would complete a full global assessment of the H&C application if:
• The applicant is a child below 18 years of age or,
• The applicant is the parent or legal guardian of a child under 18 years of age (irrespective of whether the applicant is a Canadian citizen or a foreign national in Canada or abroad)
• The officer would take all factors into account (such as carrying out a further assessment of the BIOC factors) before rendering a final decision
• The officer would need to review the application in greater detail if the applicant identifies a child below 18 years of age where:
• The applicant is not the parent of legal guardian of the child or,
• The applicant is not a child below 18 years of age
• In this situation, the officer would need to check whether the applicant has demonstrated that there would be an adverse impact on the best interests of the child directly affected by the removal
• The officer would apply an exception to the 12-month bar in case there is an adverse impact on the best interests of the child directly affected by the removal
• The officer would render a decision on the H&C application after considering all the relevant H&C factors presented (including the full global assessment)
• Upon assessing the application, if the officer determines that the applicant has not provided sufficient and credible evidence about the BIOC, the officer would:

• Refuse the request for an exception to the 12-month bar by providing a written rationale for the refusal
• Send a refusal letter to the applicants
• Advise the applicants that their requests for an exception to the 12-month bar on H&C considerations have been refused
• Detail the reasons on the file, especially those concerning the BIOC factors associated with the case
• Not issue a refund in these cases

Note:

• Officers must review the steps listed in OB 063-B and OP 15 as being necessary for any clarifications on assessing medical inadmissibility on social services
• Officers must note that any information they receive from independent research could be extrinsic and thus, they would need to exercise procedural fairness

Application for Permanent Residence on Humanitarian and Compassionate Grounds – Exception Requested

The Stage 1 H&C process tend to vary with each case. This is because each officer’s assessments of the case and the exception vary from case to case.

• Risk to Life Caused by the Inability of the Home Country to Provide Adequate Medical or Health Care
• Sufficient evidence would be presented in the case of A38 inadmissibility
• The officer would refer the case to the delegated decision-maker i.e. the Director of Case Review
• The Director of Case Review would:
• Consider all the H&C factors presented in the application and,
• Make a decision on the H&C application
• In case the applicant is not inadmissible under A38, the officer would conduct a full global assessment before arriving at a decision
• After reviewing the application and all submissions, if the officer feels that there is no sufficient evidence prescribe an exception to the 12-month bar, the officer would:
• Send a refusal letter to the applicants
• Advise the applicants that their requests for an exception to the 12-month bar on H&C considerations have been refused
• Detail the reasons on the file, especially those concerning the medical factors associated with the case
• Not issue a refund in these cases
• Adverse Effect on the Best Interests of a Child (BIOC) Under 18 Years of Age who is Directly Affected
• Once the applicant presents sufficient evidence, the officer would review all H&C factors presented with the application and make a full global assessment of the application
• After reviewing the application and all submissions, if the officer feels that there is no sufficient evidence prescribe an exception to the 12-month bar, the officer would:
• Send a refusal letter to the applicants
• Advise the applicants that their requests for an exception to the 12-month bar on H&C considerations have been refused
• Detail the reasons on the file, especially those concerning the BIOC factors associated with the case
• Not issue a refund in these cases 

Transitional Instructions

• These transitional instructions apply to applications received:
• On or After 28 June 2012 and,
• On or Before 31 October 2012 and,
• Where the applicants did not use the new form AND,
• Where the applicant is subject to the 12-month bar
• The H&C Guide and the IMM 5283 were changed effective 28 June 2012
• Officers would need to return any applications received after 01 November 2012 that do not use the new forms
• Officers would not be able to determine the exception eligibility easily in cases where the applicants have not used the new form
• Thus, the officers would need to assess these cases in detail for determining whether an exception is being requested
• Officers would need to assess the application or submissions to see whether the applicant has identified:
• Any possible medical condition has been identified or,
• A child
• If either of these has been identified, the officer would continue evaluating the application as per the procedures listed above
• If neither factor is present, the officer would:
• Return the application to the applicant
• Issue a letter to the applicant stating that the 12-month bar is in effect and that a refund would be issued
• Officers would need to check for the latest legislative changes under the PCISA with:
• OB 440-A: The new refugee determination system and,
• OB 440-D: Designated foreign nations: Restrictions on applications for permanent residence

 

Source: Citizenship and Immigration Canada (CIC)