- in Canada
To respect the objectives of the Act, "humanitarian and compassionate values" which are enshrined in the Charter and the International Covenant on Civil and Political Rights (ICCPR), should be considered. The relevant principles of the ICCPR include:
- non-interference in family life (Article 17)
- the importance and protection of a family unit by society and the State (Article 23)
- the child's "right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State" (Article 24).
It is not necessary to specifically refer to and analyze the international human rights instruments to which Canada is signatory. It is sufficient to address the substance of the issues raised. (See Okoloubu v. Canada (Minister of Citizenship & Immigration); 2008 CarswellNat 3852; 2008 FCA 326.)
Factors to consider
Factors related to country of origin
- an applicant’s links with their country of origin (e.g. the length of time they resided in their country of origin, their ability to speak the language, return visits since their arrival in Canada and family members remaining in the country of origin)
- family members’ link(s) to the applicant’s country of origin, if applicable (e.g. the length of time spent in applicant's country of origin, their ability to speak language of the applicant's country of origin, other family members in the applicant's country of origin).
Factors related to current immigration or citizenship status
The removal of an individual from Canada may have an impact on family members who do have the legal right to remain (i.e. permanent residents or Canadian citizens). Other than a spouse or common-law partner, family members with legal status may include, among others, children, parents and siblings. The lengthy separation of family members could create a hardship that may warrant a positive Stage 1 assessment. You should consider:
- the current immigration or citizenship status of each member of the family
- the applicant’s immigration status at the time the family links were formed (i.e. status at the time of marriage, of having children, etc.)
- if applicant’s immigration status was lost after the family links were formed, what was the original status and under what circumstances was the status lost?
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 particular attention given to the interests and situation of any dependent children with legal status in Canada
- the particular circumstances of any children of the applicant (age, needs, health, emotional development)
- financial dependence of the family members
- whether the applicant could have been a member of the family class if they applied outside Canada
- links with family members (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, particularly their children
- any previous period of separation (what was the duration and the reason?)
- court order in relation to custody arrangements, if applicable
- if the applicant is the non-custodial parent, have they been exercising their visitation rights?
- information indicated in the family court documents about the family’s circumstances
- the degree of psychological/emotional support in relation to other family members
- whether the family will have the option of being together in another country or be able to maintain contact
- the impact on family members, especially children, if the applicant is removed.
- adult applicants may present submissions from, or on behalf of, members of their family, setting out the family members' views. For children, such submissions should be considered in accordance with the age and maturity of the child, recognizing the increasing capacity of children as they mature, to present their own views.
Family members in Canada, particularly spouses, who are in abusive relationships and are not permanent residents or Canadian citizens, may feel compelled to stay in the relationship or abusive situation so they may remain in Canada; this could put them in a situation of hardship.
You should be sensitive to situations in which the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive situation and, as a result, does not have an approved family class sponsorship.
Consider the following factors:
- information indicating there was abuse such as police incident reports, charges or convictions, reports from shelters for abused women, medical reports, etc.
- whether there is a degree of establishment in Canada
- the hardship that would result if 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
- whether the applicant has children in Canada or/and is pregnant.
Sponsorships: Family class applicants for H&C overseas
Applicants in the family class whose sponsor is ineligible may request H&C consideration to overcome the requirement to have an eligible sponsor. Only foreign nationals may request H&C consideration (A25(1)). The sponsor, who is either a permanent resident or Canadian citizen, may not request H&C consideration.
In such cases, the sponsor must indicate in the appropriate box on their sponsorship application that, if they are found ineligible, they want their application sent 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 must request an exemption from the requirement to have an eligible sponsor. In the assessment of such cases, consider factors such as whether, for example, the applicant would be able to help the sponsor become self-supporting.
In cases in which a sponsor is eligible but the applicant is not, the foreign national would have to request H&C consideration in writing.
- Date Modified: