I am often asked to submit an application on H&C grounds, regardless of whether the applicant is eligible for that category. This blog explains who is eligible for this type of application and how an H&C decision is made.
What is an H&C application?
An H&C application looks at why you deserve to stay in Canada more than someone else in a similar situation. An H&C application is meant for two types of people. The first group is admissible to Canada but does not meet the requirements of an economic immigration category. The second group of people are inadmissible for criminality, health reasons, financial ability, misrepresentation, or non-compliance with the Immigration and Refugee Protection Act. Both groups may have an opportunity to apply for permanent residence with H&C consideration, but this type of application should be used as the last resort for obtaining permanent resident status. Your humanitarian reasons must overcome any inadmissibility or other issues.
Your application might be approved if sufficient H&C factors are supported by compelling documentary evidence. However, from the beginning of the process, you need to understand that the approval is discretionary, meaning that the decision rests on the opinion of one immigration officer.
Standalone H&C applications (not combined with another type of application) are specifically for applicants who are physically in Canada with or without legal status. Immigration officers are obligated to review these applications. It is important to note that you cannot submit a standalone H&C application from outside Canada.
When you make an H&C application, you ask the immigration officer to excuse you from part of the law based on exceptional reasons. The immigration officer will only approve your application if the evidence presented is compelling enough to prove that significant harm would result if they refused the application, and you were forced to leave Canada. The refusal rate for H&C applications is high, so thorough preparation, convincing documentary evidence, and a detailed summary of your personal situation are of utmost importance.
Eligibility Factors
Applications are evaluated individually, with an officer considering various factors such as your employment history, community involvement, willingness to learn one of Canada’s official languages, ties to your home country, health care needs, the best interests of any minor children in your life, the impact of family separation, the inability to leave Canada, and other justifications for granting permanent residence.
Exclusions under the H&C Grounds
You are not eligible to apply for H&C if you are inadmissible due to security, human rights violations, or organized criminality, or if your refugee claim was refused less than 12 months ago (exceptions apply).
Documentary Evidence
An officer will also consider documentary evidence and recent case law. For instance, the Federal Court of Canada recently ruled it reasonable for an immigration officer to refuse an H&C application due to insufficient evidence of establishment in Canada. In this case, an Iranian national came to Canada in 1986 at the age of 16 and had his application refused because he did not provide enough documentary evidence. In Malaekeh v. Canada (Citizenship and Immigration), 2024 FC 1058, Justice Gleeson determined that it was reasonable for IRCC to conclude there was insufficient evidence of establishment due to a lack of supporting documents, even though the applicant had been in Canada for 35 years.
The immigration officer will not ask for additional evidence and will only accept what was included in the initial application and subsequent updates. You must think like an immigration officer and anticipate the documents they will need to decide your case in your favour.
Our application package contains hundreds of pages of supporting documents and research covering all aspects of your application, along with our submission letters, which typically range from 15 to 17 pages. Applicants are often surprised by the amount of documentation required and the level of involvement needed to prepare the application.
An immigration officer may consider many other factors to render their decision and may also conduct their own research. Officers heavily rely on the documents included in your application, which are unique and specific to your facts.
Closing Thoughts
Due to the complexity and discretionary nature of H&C applications, it is advisable to seek legal advice from an experienced Regulated Canadian Immigration Consultant specializing in H&C cases. A qualified representative can assess your chances of success, ensure that your application is properly prepared and presented, and act as an effective advocate on your behalf.
After you submit an H&C application, you should not travel outside Canada until you become a permanent resident. If you have temporary resident status, you must continue to apply for extensions until your application is finalized. Additionally, if you are out of status, you will remain so, or must apply for a Temporary Resident Permit (TRP). Without a TRP, you could face removal at any time.
If your application is refused
H&C applications are evaluated based on the merits of each case. If an application is refused, the applicant may resubmit it with more substantial documentary evidence, provided they are still allowed to stay in Canada, or they can seek a judicial review from the Federal Court. Applying to the Federal Court is expensive, and not many applicants wish to go that route.
Let Us Help You
To find out if your circumstances qualify for an H&C application, please schedule a consultation with me.
In Summary
Types of Applicants
- Admissible individuals: Those who meet the basic criteria to stay in Canada but don’t qualify for economic immigration categories.
- Inadmissible individuals: Those who face barriers like criminality, health issues, or other legal challenges.
Key Eligibility Factors
- Employment history and community involvement
- Willingness to learn official languages
- Health care needs and family ties
- Impact on minor children and family separation
Application Process and Documentation
- Approval is discretionary and depends on the immigration officer’s judgment.
- Comprehensive documentation is essential; officers will not request additional evidence.
- Applications must be submitted from within Canada.
Exclusions
- Applicants with security concerns or recent refugee claim refusals.
Post-Submission Considerations
- Do not travel outside Canada until permanent resident status is granted.
- Maintain temporary resident status by applying for extensions or a Temporary Resident Permit (TRP) if necessary.
If Your Application is Refused
- Consider resubmitting with stronger evidence or seeking a judicial review from the Federal Court.
Do You Qualify?
Curious if you qualify for an H&C application? Schedule a consultation with us today to explore your options and get expert advice tailored to your unique situation.
