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Onus on applicant when seeking residency on humanitarian grounds


Dear Mr Brown:

I applied for permanent residence status under humanitarian and compassionate grounds. It has been a very long wait during COVID-19 and I heard that they are rejecting more people. I wanted to know if you could confirm the rejection rate.

– CGM

Dear CGM:

The number of rejections of permanent residence applications under humanitarian and compassionate grounds (H&C) have doubled from 35 per cent in 2019 to nearly 70 per cent in early 2021. However, please note that an H&C case is a case-by-case process, based on merit. I can’t provide a general response because I am not sure about the specific grounds for your case as you did not mention them.

The H&C class provides discretion to grant permanent or temporary residence to applicants who would otherwise NOT be eligible under Canadian immigration laws. The discretionary nature of H&C consideration provides the Canadian Government with the flexibility to approve exceptionally deserving cases that are not anticipated by immigration laws. This applies to those who wish to go to Canada and those who wish to remain there but are inadmissible for technical, medical, or criminal reasons. It may be considered for those inadmissible on grounds of security, human or international rights violations, serious criminality, organised criminality or health.

A foreign national who is inadmissible or who does not meet the requirements of immigration laws may request H&C consideration. However, the discretion is exercised on a case-by-case basis, taking into account an applicant’s unique circumstances. In fact, immigration officers may consider H&C grounds on their own initiative.

Standard

The onus is on the applicant to articulate the hardship that is sustained should they not be granted an exemption.

The applicant must demonstrate suffering if they are not granted an exemption or an immigrant visa for Canada that:

• Is unusual, in that the circumstances were not anticipated or addressed by the Act or regulations;

• Is undeserved, in that the deleterious circumstances are beyond the person’s control; or

• Results in disproportionate hardship, in that not being granted the exception would have an unreasonable impact on the applicant due to his/her personal circumstances.

Government response

The rationale given by the Government of Canada regarding the higher number of refusals is based on COVID-related delays and the policy to grant extensions for submission of documents. For example, when an H&C application is approved in principle, further assessment is then undertaken to determine admissibility, which requires the applicant to submit additional documentation and to complete a medical exam, which can cause approvals to take longer to finalise than refusals.

As such, applicants have encountered delays (resulting from COVID-19) in obtaining these additional required documents, which in turn delays the finalisation of their application. These delays have resulted in approval rates appearing lower than actuality, that is, fewer cases (which could potentially be approved) are finalised during the period in question so far.

Please visit JAMAICA2CANADA.COM for additional information on Canadian Permanent Residence programmes, including Express Entry, The Study & Work programme, Visas or Appeals, etc.

– Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM—a Canadian immigration & education firm in Kingston. Send questions/comments to documents.jamaica2canada@gmail.com

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