An application under H&C grounds pursuant to section 25(1) of the IRPA is a powerful tool that can allow an individual from within Canada to seek exemption from the operation of the IRPA and IRPR and become a PR.
Section 25(1) of the IRPA allows the minister of citizenship and immigration or their delegates the discretion to exempt applicants from most requirements of the Act. This exemption, based on “humanitarian and compassionate” grounds, has been part of immigration legislation and the discretionary powers of the executive in this country for decades
Such an application can consider a number of factors: for example, the individual’s time and establishment in or ties to Canada; the circumstances leading to their application for relief; the adverse challenges that removal or a return scenario would entail (or “hardship”); and the best interests of a child or children affected by the decision.
The remedy has been sought by:
- failed refugee claimants in Canada;
- sponsors that are ineligible under s.117(9)(d);
- those without status in Canada or those with temporary status in Canada with no other option to obtain PR status;
- other FNs that are inadmissible to Canada (except those inadmissible under s.34/35 and 37).
An officer has wide discretion in considering such requests.
The manual (now simply on the IRCC website) lists the following non-exhaustive factors:
- establishment in Canada for in-Canada applications;
- ties to Canada;
- the best interests of any children directly affected by the H&C decision;
- factors in their country of origin including adverse country conditions;
- health considerations including inability of a country to provide medical treatment;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment (in the case of applicants in Canada);
- ability to establish in Canada for overseas applications;
- any unique or exceptional circumstances that might merit relief.
Some have tried using the H&C for parents and grandparents (where the sponsor doesn’t meet certain criteria or is simply not selected to sponsor). We have done as well, successfully on many occasions. However, one case was recently refused and leave was dismissed by the Federal Court (Gian Kaur v. MCI 2022 FC 686).
 Her circumstances, as demonstrated by her supporting documents are, sadly, the circumstances of many parents and grandparents who love and are loved by their children and grandchildren and who would prefer to live with them in Canada. However, this is not a situation, for example, where there is evidence of a highly interdependent relationship, such as where a child is ill or has special needs and/or their parent is unable to care for them, and a grandparent is providing necessary additional care. The grandparent being required to leave Canada in those circumstances may warrant s 25 exceptional relief (see Le v Canada (Citizenship and Immigration), 2022 FC 427 at paras 18, 22).
Whether or not you should file a H&C depends on the facts, circumstances and unique immigration/personal history of the individual. It’s important to canvass this option with experienced counsel and work together with that counsel to put the best possible application before an Officer.