The Restrictions on the Examination of Applications

Colin R. Singer
August 29, 2016

The following restrictions apply on the examination of humanitarian and compassionate (H&C) applications.

Certain People Who Have Outstanding Humanitarian and Compassionate (H&C) Requests

When the Humanitarian and Compassionate (H&C) is received on or after June 29, 2010 and the applicant has…

Then, the officers dealing with the Humanitarian and Compassionate (H&C) application

A pending Humanitarian and Compassionate (H&C) application

(This could include a Humanitarian and Compassionate (H&C) request made in the context of another kind of permanent resident application)

Would need to avoid examining the application – there are no exceptions to this
Would need to return the fee and the application

In the case of a Spouse and Common-Law Partner in Canada application under the public policy, the only possibility for inadmissibility involves a scenario where the person is out of status. In this scenario, the bar on concurrent applications does not apply. This is because it is an application under a public policy, and not under Humanitarian and Compassionate (H&C) considerations.

Situations could arise where the applicant does not meet the requirements of the public policy because of various other inadmissibilities. In this scenario, the applicant has the ability to request for Humanitarian and Compassionate (H&C) consideration. Hence, the bar on concurrent applications will apply. This is applicable as long the application was submitted on or after June 29, 2010.

The Inadmissibilities for Which the Applicant Might Not Request an Exemption

When the Humanitarian and Compassionate (H&C) is received on or after June 19, 2013 and the authorities	Then, the officers dealing with the Humanitarian and Compassionate (H&C) application
Find the applicant inadmissible under the provisions specified in A34, A35 or A37	Would need to avoid examining the application – there are no exceptions to this Would need to return the fee and the application as long as the processing has not commenced on the application
Suspect that the applicant might be inadmissible under the provisions specified in A34, A35 or A37, but are awaiting a final determination from the authorities	Would need to send the application to the Backlog Reduction Office in Vancouver (BRO-V) Security Unit for assessment of the suspected inadmissibility (the officers would need to retain the fees in this scenario) Would need to refuse the application if they find the applicant inadmissible under the provisions specified in A34, A35 or A37 Would need to examine the Humanitarian and Compassionate (H&C) request if the applicant is not inadmissible

The Other Restrictions on Humanitarian and Compassionate (H&C) Applications

When the Humanitarian and Compassionate (H&C) is received and the applicant	Then, the officers dealing with the Humanitarian and Compassionate (H&C) application
Is a permanent resident or a Canadian citizen at the time the authorities receive the application	Would need to avoid examining the application – there are no exceptions to this Would need to return the fee and the application
Became a permanent resident or a Canadian citizen after the officers commenced the processing of the application	Would need to avoid examining the application – there are no exceptions to this Would need to retain the fee and send the refusal letter
Is a former permanent resident or a Canadian citizen who has lost their status (refer to Appendices A, B, C and D for more details on this)	Would need to examine the application to see if there is any confirmation of the loss of status Would need to return the application and the fee to the applicant, if they are unable to confirm the loss of status It is worth highlighting that the officers would need to avoid holding the application open while the authorities are examining the loss of status

The Persons Who Made a Refugee Claim or Whom the Authorities Have Designated as Foreign Nationals

The authorities have placed a bar on access to Humanitarian and Compassionate (H&C) consideration. This is applicable in Canada as well as overseas. In particular, this bar applies in cases where:

The applicant has a pending refugee claim or,
Less than 12 months have elapsed since the applicants received the last negative decision from the Immigration and Refugee Board (IRB)

In addition, the authorities have also placed a bar on applications from designated foreign nationals. The table that follows highlights the applicable restrictions.

When the application is received on or after June 28, 2012 and the applicant	Then, the officers dealing with the Humanitarian and Compassionate (H&C) application	Exceptions
Has a pending refugee claim	Would need to avoid examining the application and, Would need to return the fee and the application	None
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) [refer to Note 1 at the bottom of the table]	Would need to avoid examining the application until 12 months have passed since the date of the last Immigration and Refugee Board (IRB) decision and, Would need to return the fee and the application	Cases where the removal of the applicant would either: Result in a risk to life caused by the inability of the applicant’s home country to provide adequate medical or health care or, Have an adverse effect on the best interests of a child (BIOC) directly affected by the removal The child would typically need to be under 18 years of age In this scenario, the officers would need to retain the fee. In addition, they would need to examine the request for an exception.
Abandoned a refugee claim	Would need to avoid examining the application until 12 months have passed since the date the Refugee Board (IRB) determined the claim as having been abandoned and, Would need to return the fee and the application	Cases where the removal of the applicant would either: Result in a risk to life caused by the inability of the applicant’s home country to provide adequate medical or health care or, Have an adverse effect on the best interests of a child (BIOC) directly affected by the removal The child would typically need to be under 18 years of age In this scenario, the officers would need to retain the fee. In addition, they would need to examine the request for an exception.
Withdrew a refugee claim AFTER the authorities heard substantive evidence at the Immigration and Refugee Board’s Refugee Protection Division (RPD) hearing [refer to Note 2 at the bottom of the table]	Would need to avoid examining the application until 12 months have passed since the date the Refugee Board (IRB) determined the claim as having been withdrawn and, Would need to return the fee and the application	None
Withdrew a refugee claim BEFORE the authorities heard substantive evidence at the Immigration and Refugee Board’s Refugee Protection Division (RPD) hearing [refer to Note 1 at the bottom of the table]	Would need to examine the application	None
Is a designated foreign national [available internally only]	Would need to avoid examining the application for a duration of five years since the designation and, Would need to return the fee and the application	None
Note 1: This bar does not apply in case the authorities determine a person to be ineligible for referral to the Refugee Protection Division (RPD). This is in accordance with the provisions specified in A101 (1). In addition, this bard does not apply to people whose claim the authorities rejected on the basis of E or F or Article 1 of the 1951 Refugee Convention.
Note 2: The hearing of substantive evidence denotes instances where the Refugee Protection Division (RPD) began examining the merits of the claim.

The Method Used for Calculating the 12-Month Bar

It is worth highlighting that the 12-month bar comes into force on the day the authorities make the negative decision at the Immigration and Refugee Board (IRB). This decision could take place at the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD). In addition, this 12-month bar remains in effect until the one year anniversary of the decision.

A negative decision typically includes withdrawals after the authorities heard all the substantive evidence and abandoned claims. It is worth mentioning that withdrawals refer to instances where the Refugee Protection Division (RPD) began examining the merits of the claim.

For instance, consider a situation where a refugee claimant received a negative decision from the Immigration and Refugee Board (IRB) on September 10, 2012. In this case, the 12-month bar would remain in effect until September 09, 2013. The authorities would examine Humanitarian and Compassionate (H&C) applications from this applicant on September 10, 2013.

The Immediate Application of the Bar

Failed refugee claimants are subject to the 12-month bar. This includes people with refugee claims rejected prior to June 28, 2012 and people whose Humanitarian and Compassionate (H&C) applications the authorities received after June 28, 2012. The bar does not apply if these individuals qualify for an exception on the basis of either:

Inadequate medical or health care in the country of origin, which could lead to a risk to life upon removal or,
The best interests of a child (BIOC)

In addition, the bar includes applicants who apply in other categories as well. This would typically include those individuals covered by a public policy. It would cover people requesting for Humanitarian and Compassionate (H&C) consideration as well.

For instance, consider a situation where a refugee claimant receives a negative decision from the Immigration and Refugee Board (IRB) on February 06, 2012. Thereafter, the authorities receive a Humanitarian and Compassionate (H&C) application on July 06, 2012. In this scenario, the authorities would not examine the Humanitarian and Compassionate (H&C) application as the bar is in effect until February 06, 2013.

Similarly, consider a situation where a refugee claimant receives a negative decision from the Immigration and Refugee Board (IRB) on February 06, 2012. Thereafter, Citizenship and Immigration Canada (CIC) received a Humanitarian and Compassionate (H&C) application on June 15, 2013. In this scenario, the authorities would examine the Humanitarian and Compassionate (H&C) application because the bar is no longer in effect.

The Exception in Cases of Medical Conditions that Pose a Risk to Life

Situations could arise where applicants are subject to the 12-month bar. In addition, they request an exception because of medical conditions that pose a risk to life in case the authorities were to remove the applicants. In this scenario, the officers would need to examine the submissions presented. This would enable them to determine if evidence exists for supporting the claim that:

The applicant is suffering from the specified medical condition and,
The treatment for this condition is not available in the applicant’s country of origin

In this scenario, the applicant would need to demonstrate that removal would result in an increased risk to the applicant’s life. As such, this risk would need to be real, imminent and foreseeable. Such evidence could include both of the following:

Documentation from the applicant’s doctor confirming that the doctor:
- Has diagnosed the applicant with a medical condition that poses a risk to life
- Is following the appropriate treatment methods and,
- Confirms that treatment for this condition is essential for the applicant’s survival
Confirmation from a reliable source in the country of origin that attests to the fact that acceptable treatment for the specific medical condition is not available in the applicant’s country of origin

It is worth highlighting that the officers might find it necessary to confirm the information provided by the applicant. For more information on this, officers would need to refer to:

The section titled ‘Inability of a Country to Provide Medical Treatment’ given on the website of Citizenship and Immigration Canada (CIC) and,
Links to websites detailing the medical treatment available in various countries

In some exceptional cases, a Manager could contact Medical Services, NHQ for confirming whether appropriate treatment is available in a particular country.

In some cases, the officers might feel satisfied that the applicant meets the requirements of the medical exception to the one year bar. In this scenario, the officers would need to carry out a full global evaluation of the Humanitarian and Compassionate (H&C) request. For more details, officers could refer to the section titled ‘Humanitarian and Compassionate (H&C) Medical Inadmissibility’ given on the website of Citizenship and Immigration Canada (CIC).

In some situations, the applicant might not meet the requirements for a medical exception from the one year bar. In this scenario, the officers would need to send a letter to the applicant. This letter would need to specify the authorities have refused the request for an exception to the 12-month bar on Humanitarian and Compassionate (H&C) consideration. In these situations, the officers would not need to refund the fees

The Exception in Cases Involving the Best Interests of the Child (BIOC)

Situations could arise where applicants are subject to the 12-month bar and they request an exception because of the best interests of the child (BIOC). In this scenario, officers would need to examine the application and the submissions. Thereafter, they would need to determine if the applicant meets the exception to the 12-month bar. The exception would typically apply in cases where both the following points are applicable.

In cases where a child would be personally affected by the removal (in this case, the application must state the specific reasons detailing why the removal is not in the best interests of the child) and,
In cases where credible evidence exists for demonstrating that the applicant’s removal could have a direct and adverse effect on the child
In case the child is below 18 years of age and is either the applicant or a dependent of the applicant
- The exception will usually apply in cases where the applicant is a child below 18 years of age or if the applicant is the parent or legal guardian of a child under 18 years of age (either a Canadian citizen or a foreign national in Canada or abroad)
- In this scenario, the officers would need to complete a full global assessment of the Humanitarian and Compassionate (H&C) application
- It is worth highlighting that the final decision would need to consider all the factors applicable – including a detailed assessment of the best interests of the child (BIOC)
In case the applicant requests an exception for the Best Interests of the Child (BIOC) in other circumstances
- In some cases, the applicant might identify a child below 18 years of age, but might not be the parent or the legal guardian of the child
- Similarly, in some cases the applicant might not be under 18 years of age
- In both these cases, the officers would need to determine if the 12-month bar applies
- For this, the officers would need to determine whether the applicant has demonstrated in the submissions that there would be an adverse effect on the best interests of a child directly affected
- If the officers find that this is indeed the case, the officers would need to make a decision that consider all the applicable factors – including a detailed assessment of the best interests of the child (BIOC)
- In some cases, the officers might find that the applicant has failed to demonstrate that the applicant qualifies for an exception to the 12-month bar
- In this scenario, the officers would need to send a refusal letter to the applicant
- In addition, they would not refund the fees

The Restrictions on the Examination of Applications

Colin R. Singer

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