What IRCC changed on August 27
IRCC adjusted its program delivery instructions for permanent residence requests based on humanitarian and compassionate (H&C) considerations. It created two new pages, "Initial assessment of an H&C application" and "Referral procedures", revised six existing pages, and deleted three older instructions: "Balance between discretion and consistency", "Onus on applicant" and "Threshold of proof". The content of those three now appears in the new initial-assessment page.
IRCC describes the changes as minor updates plus new guidance for officers. This is not a new immigration pathway, a change to the Immigration and Refugee Protection Act or an automatic exemption. An H&C request is still a request for an exemption under section 25(1) of the Act, assessed on the evidence in the file.
Who can make an H&C request
A person in Canada can submit a stand-alone H&C permanent residence application, or ask for an H&C exemption from a requirement as part of a permanent residence application in a family, economic or refugee class. A stand-alone H&C application does not exist outside Canada. From outside Canada, the written H&C request must be made in the context of an application for a permanent resident visa. Processing fees must be paid before an H&C request can be examined.
Restrictions that still apply
- A pending H&C application stops a second H&C application or request from being examined.
- H&C cannot be used to get an exemption from inadmissibility under section 34, 35, 35.1 or 37 of the Act, and it cannot be used to get an exemption from Ministerial Instructions that govern invitations to apply.
- A person with a refugee claim pending before the Refugee Protection Division or the Refugee Appeal Division is barred, as is a person whose claim was found ineligible and who has a pending pre-removal risk assessment.
- A 12-month bar applies after a negative decision on a refugee claim (including withdrawal or abandonment), and after certain Federal Court decisions. Exceptions are possible for a medical condition posing a risk to life and for the best interests of a child.
The applicant must identify the factors and prove them
The instructions state that the onus is entirely on the applicant to be clear about the hardship they would face if the exemption were refused. Decision makers do not have to elicit information about H&C factors, and applicants must put forward the factors they think are relevant.
Ordinary facts are decided on the balance of probabilities. Once the elements have been assessed, the officer carries out a full global assessment of the facts and decides whether H&C considerations justify granting permanent resident status or an exemption.
Children, discrimination and medical hardship
The factors an applicant may raise include establishment in Canada, ties to Canada, the best interests of any children directly affected by the decision, conditions in the country of origin and health considerations. On discrimination, the instructions say that evidence of discrimination experienced by others who share the applicant's profile is relevant, whether or not the applicant can show that they were personally targeted.
For a medical hardship argument in a stand-alone application, the onus is on the applicant to provide documentary evidence from their doctor confirming the need for treatment, together with evidence that adequate treatment is not available in the country of origin. IRCC must follow the rules of procedural fairness throughout the process.
What applicants and representatives should do
- Confirm that the H&C request can be examined at all before paying fees or filing.
- Name each humanitarian factor and connect every document to a factor.
- Address the best interests of each directly affected child with child-specific evidence.
- Document any exception to the refugee-claim bar, and do not assume that H&C stops removal automatically.
- Treat the instructions as guidance for officers, not as a promise of an exemption or of permanent residence.