Discretion is a valuable element of Canada’s immigration program. It benefits our clients and is consistent with the objectives of the Immigration and Refugee Protection Act. The purpose of humanitarian and compassionate (H&C) discretion is to allow flexibility to approve deserving cases not covered by the legislation. Use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act. The H&C decision-making process is a highly discretionary one that considers whether a special grant of an exemption from a requirement of the Act is warranted. Invoking sections A25 and A25.1 is an exceptional measure and not simply an alternate means of applying for permanent resident status in Canada.
A humanitarian and compassionate assessment considers circumstances and factors that may be sufficiently compelling to allow for the requested exemption.
Humanitarian and compassionate assessment
What warrants relief will vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61; Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817). Furthermore, individual H&C factors should not be considered in isolation; there must be a global assessment of all the relevant factors.
The standard to be applied is set out in subsection 25(1): whether relief is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
The following are some considerations when processing H&C applications:
- Balance between discretion and consistency
- Onus on applicant
- Threshold of proof
- Requirement to apply for permanent residence from outside Canada
- Hardship and the H&C assessment
- Best interests of the child
- Former Canadian citizens
- De facto family members
- Ministerial Instructions and H&C
- Dealing with family relationships
- Establishment in Canada: in-Canada applications
- Ability to establish in Canada: overseas applications
- Reconsideration of a negative decision
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