Your claim was refused at the Refugee Protection Division, or the Refugee Appeal Division dismissed your appeal, and someone has told you the next step is a humanitarian and compassionate application. Then someone else tells you that you are not allowed to file one yet. Both of them are partly right, and the difference comes down to timing, and to two exceptions that most people have never heard of.
The bar, in plain terms
The Immigration and Refugee Protection Act does not let you ask for humanitarian and compassionate relief while a refugee claim is pending before the RPD or the RAD. It also does not let you ask for it during the twelve months after your claim was last rejected, abandoned, or withdrawn after substantive evidence was heard. If you did not appeal to the RAD and did not apply to the Federal Court, the clock runs from the RPD decision. In any other case, it runs from the latest of the RPD decision, the RAD decision, and the day the Federal Court refused leave or dismissed your judicial review. It does not run from the date you leave Canada.
So if the RAD dismissed your appeal on a given date and you did not go to the Federal Court, the earliest an H&C application can be filed is one year later, unless one of the exceptions below applies. If you applied for leave and the Federal Court later refused leave or dismissed your judicial review, the year runs from the Court’s decision instead.
Two things follow from this that people often get wrong. First, a Federal Court application changes when the bar starts. If the Court refuses leave or dismisses the judicial review, the twelve months run from the date of the Court’s decision, not from the Board’s decision. Second, the bar is tied to a decision of the Board. If your claim was never referred to the RPD, for example because it was found ineligible under the new one-year and fourteen-day rules that came in with Bill C-12, there was no rejection at the Board, and this particular bar does not apply to you. You face separate restrictions instead. An H&C request cannot be examined while your pre-removal risk assessment application is pending, and IRCC applies its own twelve-month bar that runs from the date your claim was found ineligible. According to IRCC’s instructions, the two exceptions below do not apply to that bar.
The two exceptions
Parliament carved out two situations where the twelve-month bar does not apply.
- Best interests of a child. If a child under eighteen would be directly affected by a refusal, the application can be filed inside the twelve months. The child does not have to be your own, and does not have to be Canadian. What matters is that the child’s interests are genuinely engaged by whether you stay or go. An application filed under this exception should say so on its face and should lead with the evidence about the child, because an officer who does not see the exception may treat the whole application as inadmissible.
- Risk to life from inadequate medical care. The second exception applies where removal would subject you to a risk to your life because of your country’s inability to provide adequate health or medical care. This is a narrow exception. It is about the availability of care, not its cost, and it requires medical evidence that the condition is life-threatening and country evidence that the treatment is not available. It is not enough to say the care is better in Canada.
If neither exception fits, filing early does not help. The application will be returned or refused as barred, the fee may be lost, and you will have spent time and money on something that could have been filed properly a few months later.
Why timing matters more than it used to
An H&C application does not stop removal. A failed claimant who is removal-ready can be removed while the application is pending, and the application is then decided from outside Canada, with the applicant’s establishment in Canada steadily losing weight. For most failed claimants, the practical question is not whether to file an H&C application, but whether it can be filed and decided before CBSA moves. We have written separately about deferral requests and stay motions once removal is scheduled.
Because of that, the twelve months should not be dead time. It is the period in which the evidence for the application gets built: employment records, tax filings, letters from employers and community organisations, school records for children, medical reports, and evidence about conditions in the country of return. An application filed on the first eligible day with a complete record is in a very different position from one filed six months later because the evidence was not ready.
What the application can and cannot rely on
One more rule catches failed claimants. When deciding an H&C application, the officer may not consider the factors that go into a refugee claim, meaning risk of persecution, torture, or cruel and unusual treatment. Those were the Board’s questions and they have been answered. The officer can, however, consider hardship arising from conditions in the country, including discrimination and adverse conditions that fall short of persecution. The distinction is subtle and the submissions have to be written with it in mind. An application that simply re-argues the refugee claim in different words will be refused for that reason alone.
For the broader question of who an H&C application is for and what it can realistically achieve, see our overview of H&C applications.
Before you file
Confirm the exact date your twelve months started, whether from the Board’s decision or the Federal Court’s, assess honestly whether either exception applies, and use the waiting period to assemble the evidence so the application goes in complete. If removal is a live risk, that has to be dealt with on a parallel track. Read more about our H&C practice, or book a consultation with Kabir & Alam Lawyers.