Supreme Court of Canada expands humanitarian and compassionate grounds
January 6, 2016
By Steven Meurrens, Canadian Immigrant |
On Dec.10, 2015, the Supreme Court of Canada issued its most significant immigration judgment in almost 20 years. Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa officers assessing applications for Canadian permanent residence on humanitarian and compassionate grounds in a much more holistic and equitable manner than previously.
People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on humanitarian and compassionate (H&C) grounds. A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reunification programs. Or it is an applicant who does qualify for more traditional immigration programs, but who is inadmissible to Canada for other reasons, may also request (with narrow exceptions) that their inadmissibility be waived for H&C reasons.
When visa officers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, as well as what could happen to the applicants if their H&C applications are not granted.
Prior to Kanthasamy, the criterion for an H&C application was whether applicants would suffer “unusual and undeserved or disproportionate hardship” if their applications were refused. Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed officers that the assessment of an H&C application was a determination of whether the applicant met this test. “Unusual and undeserved hardship” was defined as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.” “Disproportionate hardship” was defined as an “unreasonable impact on the applicant due to their personal circumstances.”
A new interpretation of H&C
In Kanthasamy, the Supreme Court of Canada found that while immigration officers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive, they do not create three new thresholds for relief that must each be met by applicants. Rather, officers are to analyze applications holistically to simply determine whether there are sufficient H&C considerations to warrant approval.