H&C applications can be made through a sponsorship arrangement or as an independent application. There is a two-step decision-making process for these applications. In the first step, the applicant applies for a “visa waiver” so that she does not need to return to her country of origin to make an applica-tion for permanent resident status. In the second step, Immigraapplica-tion Canada assesses the applicant for admissibility as a permanent resident.
The First Assessment: the H&C Decision
In the first stage of the assessment process, the immigration officer assesses whether there are humanitarian and compassionate grounds to exempt the applicant from the visa requirement. The immigration officer considers the information the applicant presents as well as all other information previously known to Immigration Canada.
There are no particular eligibility criteria in this stage of the application. It is helpful if your client can show two facts:
1. Given her particular circumstances, the hardship of having to obtain a visa from outside of Canada would be (i) unusual, undeserved, and the result of circumstances beyond her control, or (ii) disproportionate.
2. She has become established in Canada.
In the Citizenship and Immigration Canada Policy Manual, immigration officers are directed to consider the following factors. Use these factors as a guide in preparing the H&C application.
Information about the abuse
Information showing there was abuse, such as:
• police incident reports
• court information regarding charges or convictions
• reports from transition houses/shelters, community or other women-serving agencies
• medical reports from doctors, hospitals, clinics etc.
A personal chronicle of the abuse indicating:
• when the abuse began
• any incidents (with as much detail as possible i.e., date, details, witnesses);
• whether the abuse has escalated
• level of fear and risk
Information about your client’s establishment in Canada Factors that can show establishment include:
• history and records of employment
• financial records
• documents showing that your client has integrated into the community, through being involved in community organizations, in volunteer work, or other activities
• any documents or certificates from professional, language or other study that show your client’s integration into Canadian society
• information about any children who would be affected by the removal
• information about the effect that her removal would have on any Canadian citizen or permanent resident (such as an elderly person) that she is close to
Information about hardship if your client is forced to return to her country of origin
Factors that can show hardship include:
• customs and culture in the applicant’s country of origin
• lack of support of relatives and friends in the applicant’s home country
• applicant’s pregnancy
• applicant’s children and any hardship they will endure if forced to return to their mother’s county of origin
• length of time in Canada
• the sponsor will be returning to the country of origin
• the marriage or relationship was genuine
• political unrest or war in the county of origin
This is not a complete list. Your client should provide any information that she feels would be relevant and beneficial to her case.
The Interview
In most cases, the immigration officer will call your client in for an interview.
She should take as much documentation as possible. The immigration officer will ask her questions about the information in her H&C application. She can have her lawyer with her at the interview.
As her service provider, you will probably be able to attend the interview.
Contact the immigration officer for permission.
What happens if the application is accepted?
If your client’s application is approved for processing, Immigration Canada gives her an exemption from the visa requirement or a “visa waiver.” They will then consider her for permanent resident status.
What happens if her application is refused?
Your client’s application may be refused if:
• there are insufficient humanitarian and compassionate grounds to process it from within Canada
• the arrangements for her care and shelter are inadequate
• she does not pass the medical or criminal record checks
They will not refund the $500 processing fee for permanent resident status.
If your client has new information that would change the content of her application, she can reapply and pay another $500 processing fee. However, if possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she will have to leave Canada and apply from abroad.
The Second Assessment: Permanent Residence
When Immigration Canada approves the visa exemption, they then consider the applicant for permanent residence. To be granted permanent resident status, the applicant must meet the admissibility requirements.
Although an application may be successful in the first assessment, this does not mean that the second assessment will also be successful.
Here are some of the factors that may make your client inadmissible. They may have been affected by the sponsorship breakdown:
• medical inadmissibility (danger to the public or placing undue demands on the health care system)
• receiving employment assistance (including hardship assistance)
• criminal charges and/or convictions (Note: sometimes there are exceptions made for minor records form the past. For information, contact an
Immigration Canada Call Centre, listed on page 9.)
If the immigration officer uses any information that was made by someone other than the applicant, the officer must tell your client about the infor-mation and give her time to respond.
If the applicant is not successful after this second assessment, she will then have the right to appeal. For further information, see the section on “Appeal of Removal Orders,” page 36.