Humanitarian and compassionate assessment: Hardship and the H&C assessment

Applies to

• in Canada
• overseas

As of December 10, 2015, there is no hardship “test” for applicants under subsection 25(1); however the determination of whether there are sufficient grounds to justify granting an H&C request will generally include an assessment of hardship. Therefore, hardship continues to be an important consideration in determining whether sufficient humanitarian and compassionate considerations exist to justify granting an exemption and/or permanent resident status.

In many cases, hardship will arise as a result of the requirement in section 11 that foreign nationals apply for a permanent resident visa before entering Canada. In other words, a decision maker would consider the extent to which the applicant, given their particular circumstances, would face hardship if they had to leave Canada in order to apply for permanent residence abroad. Although there will inevitably be some hardship associated with being required to leave Canada, this alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under subsection 25(1) (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463).

Applicants may also request exemptions from other requirements of the Act and Regulations. In such cases, decision makers would consider the hardship for the applicant if the requested exemption is not granted.

Limitation on assessment of risk in an in-Canada application

Subsection 25(1.3) of the Immigration and Refugee Protection Act states the following: “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.

Subsection 25(1.3) applies only to H&C applications made in Canada.

Factors to consider in a humanitarian and compassionate assessment

Applicants may base their requests for H&C consideration on any relevant factors including, but not limited to

• 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.

Decision makers are not limited to assessing factors submitted by applicants and should consider and weigh all information before them including, for example, the applicant’s immigration history or criminal record.

Additional considerations in overseas processing

In the overseas context, decision makers should also consider the applicant’s circumstances relative to others living in their country when considering whether sufficient H&C grounds exist to justify an exemption. The assessment is not a comparison of life in Canada versus life in the country of origin. It is an assessment of the hardship that would result if the applicant is not granted the exemption or a permanent resident visa.

Adverse country conditions

When an applicant submits information claiming that there are conditions in the country of origin that would result in hardship if they were not granted the exemption requested, decision makers must consider the conditions in that country and balance these factors into the hardship assessment. Adverse country conditions could include factors having a direct, negative impact on the applicant such as war, natural disasters, unfair treatment of minorities, political instability, lack of employment, widespread violence etc.

The onus is on the applicant to provide information to support the claim of adverse country conditions. In order to assess an application in which adverse country conditions are cited, decision makers should look at the submissions of the applicant and determine whether redress and/or relocation is available.

Assessment of discrimination

In assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.

Inability of a country to provide medical treatment

In the case of an application in Canada, if applicants allege they will suffer hardship if returned to their country of origin because of a medical condition, decision makers must be satisfied that the applicant requires the treatment, and that the treatment is not available in the applicant’s country of origin.

The onus is on the applicant to provide both of the following:

• documentary evidence from the applicant’s doctor(s) confirming the applicant has been diagnosed with the condition, the appropriate treatment, and that treatment for the condition is vital to the applicant’s physical or mental wellbeing;
• confirmation from the relevant health authorities in the country of origin attesting to the fact that an acceptable treatment is unavailable in the applicant’s country of origin.

See also related information about suspected or known health inadmissibility (A38).

In order to substantiate an applicant’s claims, decision makers may access reliable, unbiased internet resources for information on medical care available in the country of origin, for instance

• UK Home Office Country of Origin reports
• World Health Organization
• UNAIDS (for HIV cases)
• International Organization for Migration

See also Country of origin information

Client consent may be required if case specific information is requested from third parties.

Evidence gathered to counter the applicant’s submissions must be disclosed to the applicant and an opportunity for reply provided.

If there are medical services readily available in the country of origin that the applicant could access, consider that fact in the analysis of hardship. The applicant cannot refuse to access those services in order to support a claim for hardship in an H&C application — the hardship must be assessed based on all of the evidence of services available to the applicant. If the applicant acknowledges that treatment is available but submits that it is at a prohibitively high cost, or that the treatment itself, hospital conditions, availability of medicines, etc., are inadequate or substandard, these factors, if substantiated, should be taken into account and weighed in the balance with the other H&C factors. Positive consideration may still be given in such cases if other positive factors are evident in the applicant’s submissions.

If the decision maker is satisfied that because of a medical condition an applicant would suffer hardship if returned to their country of origin, this and other positive factors (evidence of establishment in Canada, lack of family ties in the country of origin, best interests of the child considerations, etc.) should be weighed against any negative factors, such as the existence of an inadmissibility. When positive consideration may be warranted, but there exists a serious inadmissibility, forward the case to the delegated decision maker for a Stage 1 assessment.

Options for applicant to mitigate hardship

In some situations, it may be appropriate to look at whether an applicant could reduce hardship by seeking redress or by relocating within their country. The availability of redress and relocation are important, but not necessarily determinative factors in the assessment of hardship. As usual, the assessment of the H&C application focuses on a global assessment of factors presented in the application.

Details of these options are as follows:

Redress

If the decision maker concludes that a claim of hardship is valid, they should consider what avenues for recourse or other forms of prevention or redress exists in the applicant’s country of origin. Aside from a determination of how traditional state bodies like police and courts operate, this may include an investigation of the presence and effectiveness of human rights tribunals, civil society organizations, political parties and other special interest lobby groups or rights activist bodies, as well as a determination of how freely other types of non-governmental organizations, which might have an interest in the applicant’s case, operate within the country.

Relocation

An applicant for H&C consideration may face hardship in one part of the country of origin, but might reasonably be expected to seek relief at some other place within that country. In such a situation, it may be determined that undue hardship does not exist because the applicant could eliminate the hardship through relocation.

Relocation outside the country of citizenship may also be an option for persons who are citizens of countries that have entered into bilateral or multilateral agreements with neighbouring countries and which permit mobility with respect to travel, extended sojourn, employment and study, for example, the Schengen Agreement in the European Union (EU). There are other such regional agreements.