Canada as a sovereign nation has the right to control the entry of foreigners at its borders. The general rule is that, every foreigner must make an application for Canadian permanent residency, and obtain a visa before that person is permitted entry into Canada. However, an exception to this rule is that Immigration officers are given a general discretion to allow immigrants to apply for permanent residency within Canada on the basis of humanitarian and compassionate grounds.

Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would result if the applicant had to leave Canada.

The courts have stated that immigration officers are under a duty to consider requests for consideration for humanitarian and compassionate grounds. See Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565. A written application must be considered.

Applicants are entitled to a full and fair review in the determination of humanitarian and compassionate grounds. See Ken Yhap v. Canada (Minister of Employment & Immigration) (1990), 9 Imm.L.R. (2d) 243 (Fed. T.D.). Immigration officers are expected to consider carefully all aspects of a case, and make an informed recommendation. Decisions are expected to be reasonable. Wholly irrelevant factors can not be considered.

The following are examples of typical cases that have been recognized by Citizenship and Immigration Canada as humanitarian and compassionate cases, but are by no means exhaustive:

Spouses Applying at Port of Entry

Usually, a spouse applying for admission as an immigrant at a port of entry without an immigrant visa would be reportable under the Immigration Act for intending to reside in Canada permanently without an immigrant visa. However, Senior Immigration Officers, at the port of entry, are instructed to assess the bona fides of the Marriage relationship. If it is found to be a genuine relationship, a Minister’s Permit will be issued pending finalization of the immigrant’s inland application for landing.

Marriage Breakdown

There are situations in which a Canadian sponsor withdraws the sponsorship prior to the spouse being granted landing because of the breakdown of the relationship. The Immigration officer will taken into consideration the spouse’s ability to become successfully settled in Canada, and whether humanitarian and compassionate grounds exist. The following factors will be considered:

  • education, training, and employment;
  • whether there are relatives in Canada willing to assist;
  • whether the marriage was originally bona fide;
  • whether there are elements of fraud, misrepresentation, or bad faith
  • whether there was physical, sexual or mental cruelty in the relationship;
  • whether the applicant is pregnate;
  • whether there is a Canadian child who would suffer if the applicant leaves Canada
  • De Facto Family Members

Parents, children, or persons unrelated by blood, who are de facto family members of a Canadian citizen or permanent resident and who are financially or emotionally dependent could experience undue hardship if required to apply abroad for an immigrant visa.

Ilegal Residents

An illegal resident is a person who has no legal status in Canada. This may be someone who entered Canada as a visitor and has remained in Canada beyond the expiration of his or her temporary status. The illegal resident has been in Canada for such a long time, and is so established that he or she has in fact, if not in law, established residence in Canada and not abroad. These individuals are self-supporting, and have severed ties with their home country, and would suffer hardship if required to leave Canada.

Facing a Life Threatening Situation in Country of Origin

Where there exists a special situation in the applicant’s home country that prevents the applicant from applying at a visa office, the applicant may request that an inland application be considered on the basis of humanitarian and compassionate grounds. The applicant has a strong belief that s/he will face a life-threatening situation in his or her homeland as a direct result of the political or social situation in that country.

Individuals in this type of situation should also consider applying as a Conventional Refugee.

Long Term Foreign Workers

Foreign workers who have been in Canada for years, with continual employment, may warrant inland landing if hardship would result in applying for landing at a visa office. Such persons may have homes in Canada, children who were born and educated in Canada, with no real residence abroad.

Procedure

Applications for inland processing must be submitted to the Case Processing Centre in Vegreville, Alberta.

Applicants will be notified by Citizenship and Immigration Canada if an interview is necessary. The applicant may be required to undergo a medical examination, to obtain police reports of good character.

The standard time for processing an application for landing is 90 days from the date of mailing to approval in principle. When applicants are interviewed the process may taken an additional six months. After being approved in principle, the applicant may have to wait an additional 12 to 18 months to be landed. Applicants may obtain employment or student authorizations once the application has been approved in principle.