Foreign nationals who are inadmissible may submit an H&C request to overcome their inadmissibility, except in certain circumstances. The Minister or his delegated authority may grant an exemption from the inadmissibility if they are of the opinion that it is justified by H&C considerations.
When to consider an exemption for an inadmissibility
Inadmissibilities should be considered at the stage at which they are known by the decision maker and in the overall context of the H&C considerations put forward by the applicant. In other words, the officer should determine whether the H&C considerations of the case are sufficient to warrant a waiver of the inadmissibility. If the officer is of the opinion that the H&C considerations are not sufficient, the application should be refused. If the decision maker does not have the authority to waive an inadmissibility, but is of the opinion that there might be sufficient H&C considerations, the case should be referred to the delegated decision maker for consideration of an exemption.
When more than one exemption is required, and there is more than one delegated decision maker, then the higher authority should decide on all inadmissibilities.
Procedures for specific inadmissibilities:
- Criminal inadmissibility [A36(1) and A36(2)]
- Medical inadmissibility [A38(1)]
- Inadmissibility of family members [A42]
- Financial inadmissibility – social assistance [A39]
Inadmissibilities for which no exemption has been requested
In the absence of a specific request from the applicant, decision makers may refuse an application or have the authority to consider exemptions on their own initiative at anytime during the assessment of an application (A25.1(1)). Such situations may involve either:
- an applicant who does not meet the requirements of the Act or Regulations
- new or existing inadmissibilities that arise after a positive Stage 1 H&C assessment, but before the applicant is granted permanent residence.
Example: A member of the applicant’s family becomes inadmissible. If you believe that the inadmissibility is not significant enough to outweigh a positive assessment you can exercise discretion and grant an exemption or refer the case to a delegated decision maker, if you believe that it is warranted by the H&C grounds.
When an applicant does not directly request an exemption, but facts in the application suggest that they are requesting an exemption for the inadmissibility, you should treat the application as if the exemption has been requested.
Example: It would be clear that the applicant is seeking an exemption for an inadmissibility without explicitly asking for it if the applicant has a criminal conviction and, in the submission, made a case as to why they should be exempted from that inadmissibility (e.g. they have served their time, are rehabilitated, have done community service, have full-time employment, etc.). The onus is on the applicant to make their case and it is the applicant who “bears the burden of proving any claim upon which he relies” (Owusu v. MCI, 2004 FCA 38).
When you consider an exemption in the absence of a specific request from the applicant, notify the applicant that H&C is being considered and give them an opportunity to present their own reasons for H&C consideration.
If an applicant provides updated or additional submissions and if in these submissions the applicant requests an exemption on H&C grounds from the new or newly discovered inadmissibility, the request must be considered.
In the overseas context, if processing fees are not applicable (e.g. refugee application) and you decide to use Minister’s initiative, no processing fee is required for the H&C consideration.
Extrinsic information suggesting inadmissibility
Information may come from the applicant (intrinsic information), or from some other source (extrinsic information). When it appears that the decision will be negative because of information obtained from someone other than the applicant, procedural fairness requires that you inform the applicant, providing an opportunity to respond before making a decision.
You must share releasable extrinsic information with the applicant and allow them to make submissions on it before the information is used in the decision.
Referrals to delegated decision-makers - Procedures for officers
A case should be referred to a delegated decision maker when both of the following apply:
- you do not have the delegated authority to grant a requested exemption and
- you believe that the H&C considerations might justify an exemption.
When referring a case to a delegated decision maker do the following:
Ensure that applicant is inadmissible under subsection A36(1), or section A38 or, if the application was received before June 19, 2013 inadmissible under article A34, A35, or A37.
If there is releasable extrinsic information that requires procedural fairness do all of the following:
- send a letter to the applicant to advise them of the suspected inadmissibility;
- disclose any extrinsic evidence; and
- provide them with an opportunity to make submissions.
Review submissions from client to determine if applicant remains inadmissible. If applicant remains inadmissible, ensure all extrinsic evidence and applicant’s submissions are included in the package to the delegated decision maker.
If the applicant is inadmissible under section A38 do the following:
- prepare the decision template, completing sections 1, 2, 3 and 4 with all relevant, factual information related to the case, including details of correspondence with the applicant.
- provide the file, along with the decision template outlining the details of the case to the manager
If the applicant is inadmissible under subsection 36(1) or if application was received before June 19, 2013 and the applicant is inadmissible under section A34, 35 or 37, prepare a package containing copies of relevant documents for the H&C decision-maker, including all of the following:
- a copy of the entire H&C case file including any submissions related to the case
- the decision template with all relevant, factual information related to the case, completing sections 1, 2, 3 and 4 of the template.
- details such as whether applicant has applied for Ministerial Relief (save the draft of the template in GCDocs and ensure that Case Management Branch has permission to access the document)
- all correspondence between IRCC and the applicant and interview notes (if applicable) with any extrinsic evidence
- submissions from the applicant following a procedural fairness letter
- a conviction certificate and any police/intelligence reports, results from fingerprint searches and overseas criminality checks
Do not make a recommendation when referring a case to the delegated decision maker.
If new information becomes available after the package is referred to the delegated decision maker, send the new information.
Indicate in the GCMS the date that the application is referred to the delegated decision maker.
Receive decision from the delegated decision maker. Decisions from CMB are entered in GCMS in the “Correspondence” tab.
Save and enter the decision in GCMS using the following remarks:
- If an exemption has been granted: “An exemption is granted from the inadmissibility under [provide section or subsection] of IRPA for [name of applicant]”
- If an exemption is not granted: “An exemption is not granted from the inadmissibility under [provide section or subsection] of IRPA for [name of applicant]”
Send a letter to inform the applicant of the decision maker’s decision.
Finalize processing of the case as follows:
- When the exemption is granted, begin stage 2 processing of the application. Refer to process for Quebec cases.
- When the exemption is not granted and the applicant makes an application for leave and judicial review, forward the request from the Federal Court for a Rule 9 or Rule 17 to the decision maker along with the refusal letter which was sent to the client.
- The record will be prepared at the office where the decision was made.
Procedures for the delegated decision-maker
The role of the delegated decision-maker is to examine the application to see if an exemption from the inadmissibility is warranted. Responsibility for the file and communication with the client, as well as finalization of the application remain the responsibility of the forwarding office.
Subsection A36(1) and section A38 cases
Receive the H&C application package from the referring officer.
Determine whether the file is at Stage 1 or Stage 2
- The procedures for Quebec cases differ depending on the processing stage.
Review all material submitted by the applicant, including H&C considerations and any other relevant factors.
Make a decision after weighing all the information submitted.
For cases in which more than one inadmissibility has been identified, address whether the waiver (if granted) applies to each/all inadmissibilities (e.g. client inadmissible for both sections A39 and A38).
Prepare reasons for the decision, taking into consideration all the relevant information in the file.
Advise the referring officer of the decision.
Sections A34, A35 or A37 cases - applications received before June 19, 2013
Receive the H&C application package from the referring officer.
Review all material submitted by the applicant.
Make a decision (refusal) or refer to the Minister. If there are insufficient H&C grounds to justify an exemption, make a negative decision or refer to the Minister.
If, in the opinion of the Director of Case Management Branch, the circumstances do not justify a refusal of the request for an exemption, refer to the Minister of IRCC for a final decision. If the H&C factors warrant consideration by the Minister, inform the National Security Division, CBSA and request an updated inadmissibility recommendation if expired. Prepare a case summary, including CBSA’s valid inadmissibility recommendation if obtained, and memorandum requesting a Ministerial decision.
- Date Modified: