Many people in Canada without status, or with a refugee claim that has failed, are told by friends or online forums to “apply for H&C.” The advice is not wrong, but it usually comes with expectations the process cannot meet.
This post explains what a humanitarian and compassionate application actually is, how officers assess it since the Supreme Court’s decision in Kanthasamy, and the two limits that catch people most often: it does not stop removal, and it is often unavailable for a year after a refugee refusal.
What an H&C application is
Section 25 of the Immigration and Refugee Protection Act allows the Minister to grant permanent residence, or an exemption from a requirement of the Act, to a foreign national who would not otherwise qualify, where humanitarian and compassionate considerations justify it.
It is a discretionary remedy. There is no category of person who is entitled to it, and no set of facts that guarantees it.
The application is made from inside Canada in most cases, though it can also accompany an overseas application.
It asks the officer to look at the applicant’s whole situation: establishment in Canada, family ties, the best interests of any children affected, the hardship they would face if returned, and any other factor that would move a reasonable person to relieve their situation.
What Kanthasamy changed
Before 2015, officers commonly asked whether the applicant would face “unusual and undeserved or disproportionate hardship.”
Applications were refused because the difficulties described, while real, were not unusual enough.
In Kanthasamy v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada held that this language was a description, not a test, and that officers must not use it as a series of hurdles. The question is whether the circumstances, taken together, would excite in a reasonable person a desire to relieve the applicant’s misfortune.
Two practical consequences follow.
Hardship is one factor, not the whole case: Establishment, family separation, medical needs, mental health, and conditions in the country of return all feed into the same overall assessment.
An application that describes only hardship abroad, or only years of good conduct in Canada, is giving the officer half a picture.
The best interests of the child must be identified, examined and given substantial weight: It is not enough for an officer to state that the child’s interests were considered. The decision must show what those interests are, how they would be affected by the outcome, and how much weight they received.
This applies to children in Canada and children abroad, to Canadian citizen children and to children without status, and to children who are not the applicant’s own if they would be directly affected.
An H&C application is therefore an evidence exercise.
Letters from schools, treatment providers, employers and community members; proof of tax filing and employment; medical and psychological reports; and objective country-condition evidence are what turn a sympathetic story into a decision that can withstand review.
What an H&C application does not do
It does not stop removal. A pending H&C application has no legal effect on a removal order. The CBSA can, and regularly does, remove people while their application is in process. Anyone with an enforceable removal order who files an H&C application should understand that the application may be decided after they have left Canada, and that a decision made after departure can still result in a permanent resident visa if approved.
Our companion post on removal orders and stays explains the separate tools for delaying removal.
Anyone in that position should also ask whether a Pre-Removal Risk Assessment is open to them. Our post on PRRA applications explains who can apply and when.
It is not available for a year after a refugee refusal. Section 25 bars an H&C application by a person who has a refugee claim pending, and for twelve months after the claim was rejected by the Refugee Protection Division or the Refugee Appeal Division, withdrawn after substantive evidence was heard, or declared abandoned.
The twelve months run from the final IRB decision, not from the Federal Court’s decision on any judicial review. The bar has two exceptions: where the best interests of a child under 18 would be directly affected, and where the applicant or a dependant would face a risk to life from a medical condition that cannot be treated in their country of return.
Outside those exceptions, an application filed within the year is simply not accepted.
It does not re-argue the refugee claim. Section 25 prohibits the officer from considering the risk factors that define a Convention refugee or person in need of protection.
The officer can consider the same underlying facts, for example discrimination or violence in the country of return, but only as hardship, not as persecution. Applications that simply repeat the refugee narrative are refused for that reason.
It is not a fast process. Processing times are measured in years, and there is no expedited stream.
When an H&C application makes sense
The strongest applications tend to share a profile: several years of establishment in Canada, children whose lives are here, medical or mental health needs that are documented, and a realistic account of what return would mean.
They also tend to be filed at the right time, either before a refugee claim is made, or after the twelve-month bar has expired, and alongside a clear plan for what happens if removal is scheduled first.
If a refusal comes, the remedy is judicial review at the Federal Court, not an appeal. The Court will not re-weigh the evidence but will intervene where the officer applied the old hardship threshold, failed to engage with the best interests of a child, or ignored material evidence.
We assess H&C eligibility and prepare applications for clients across Canada. If you are weighing an H&C application against other options, book a consultation.
This post is general information about Canadian immigration law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.