Friday, June 22, 2007
Now on Facebook!
http://immigratetocanada.blogspot.com/ is pleased to announce that you can now access Ryan's articles on http://www.facebook.com/. Check out Ryan's profile and be sure to join the group Canada Immigration - Tips and Trends.
Tuesday, June 12, 2007
Shallow Labour Pool
Federal and provincial governments are tackling the issues of the labour shortage and immigration in different ways.
We all know that Canada’s, particularly British Columbia’s and Alberta’s, labour markets are suffering from a major shortage these days. In August, two major announcements were made to address this problem — one from Citizenship and Immigration Canada (CIC), the other from the British Columbia Provincial Nominee Program (B.C. PNP).
These two announcements reflect the current trend in Canadian immigration policy. The federal government is focusing on broader issues, while the provinces are doing more and more of the work to actually facilitate the entry of immigrants and workers that address real labour market shortages.
CIC announced the creation of the Temporary Foreign Worker Units (TFWU) in Vancouver and Calgary. According to CIC, the TWFUs will offer guidance to employers and human resources service providers in those two cities seeking to employ foreign workers who fall into a very limited category – that is, applicants who do not need a labour market opinion from Service Canada to support their work permit applications. This does not reflect a policy shift, but rather a re-allocation of resources. If the pilot project is successful, CIC will likely expand the program across much of Canada.
Essentially, employers and foreign workers will be able to vet applications to the TFWUs before they apply for a work permit. The TFWU will review the application and give the employer or foreign worker advice on the application. If the application is done properly, the TFWU will issue a letter to the employer or foreign worker that can then be used to apply for a work permit at an entry port into Canada. The TFWU will not issue work permits directly.
The impact from this project should be noticeable to some, but largely ineffective regarding our current provincial labour market shortages. The problem is that the TFWUs are generally designed to address intra-company transferees, whom are non-Canadian employees working in offices outside of Canada who are being transferred to their company’s offices inside of Canada (typically well-paid executives), the kind of jobs covered under trade agreements, like NAFTA, GATS and the Canada Chile Free Trade Agreement (engineers, geologists, dentists, lawyers, etc.) and those facilitated under other reciprocal arrangements. None of these agreements facilitate entry of construction workers, manufacturers or other labourers in sectors that our economy is truly in dire need.
The B.C. PNP’s announcement in August is a very positive sign of new things to come on the immigration scene. The B.C. PNP office has been given the green light to hire six new staff to deal with the ever-increasing volume of applications received by that office. Of the six new hires, four are anticipated to work on strategic occupation cases, while the other two are earmarked for business applicants. Three new staff will be hired almost immediately and the other three will join in the not-to-distant future.
The B.C. PNP has the flexibility and desire to help employers in the province hire those key employees that they need to make their businesses successful, contributing to B.C.’s bottom line. Construction workers, including various trades are typically welcomed.
The B.C. PNP is available to almost all employers facing difficulties finding qualified persons to take on good and typically decently paying jobs. Once nominated, a B.C. PNP applicant may apply for a work permit that will bridge the gap between nomination and landing as a permanent resident. Under this program, a foreign worker can typically start work within a few of months of filing an application in the PNP office.
So as the federal government offloads its responsibilities, the provinces are filling in the gaps. In many respects, this trend reflects our political landscape — national identity coupled with regional diversity. We may actually be on the right track.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at rnrosenberg@larlee.com or call 604-681-9887.
We all know that Canada’s, particularly British Columbia’s and Alberta’s, labour markets are suffering from a major shortage these days. In August, two major announcements were made to address this problem — one from Citizenship and Immigration Canada (CIC), the other from the British Columbia Provincial Nominee Program (B.C. PNP).
These two announcements reflect the current trend in Canadian immigration policy. The federal government is focusing on broader issues, while the provinces are doing more and more of the work to actually facilitate the entry of immigrants and workers that address real labour market shortages.
CIC announced the creation of the Temporary Foreign Worker Units (TFWU) in Vancouver and Calgary. According to CIC, the TWFUs will offer guidance to employers and human resources service providers in those two cities seeking to employ foreign workers who fall into a very limited category – that is, applicants who do not need a labour market opinion from Service Canada to support their work permit applications. This does not reflect a policy shift, but rather a re-allocation of resources. If the pilot project is successful, CIC will likely expand the program across much of Canada.
Essentially, employers and foreign workers will be able to vet applications to the TFWUs before they apply for a work permit. The TFWU will review the application and give the employer or foreign worker advice on the application. If the application is done properly, the TFWU will issue a letter to the employer or foreign worker that can then be used to apply for a work permit at an entry port into Canada. The TFWU will not issue work permits directly.
The impact from this project should be noticeable to some, but largely ineffective regarding our current provincial labour market shortages. The problem is that the TFWUs are generally designed to address intra-company transferees, whom are non-Canadian employees working in offices outside of Canada who are being transferred to their company’s offices inside of Canada (typically well-paid executives), the kind of jobs covered under trade agreements, like NAFTA, GATS and the Canada Chile Free Trade Agreement (engineers, geologists, dentists, lawyers, etc.) and those facilitated under other reciprocal arrangements. None of these agreements facilitate entry of construction workers, manufacturers or other labourers in sectors that our economy is truly in dire need.
The B.C. PNP’s announcement in August is a very positive sign of new things to come on the immigration scene. The B.C. PNP office has been given the green light to hire six new staff to deal with the ever-increasing volume of applications received by that office. Of the six new hires, four are anticipated to work on strategic occupation cases, while the other two are earmarked for business applicants. Three new staff will be hired almost immediately and the other three will join in the not-to-distant future.
The B.C. PNP has the flexibility and desire to help employers in the province hire those key employees that they need to make their businesses successful, contributing to B.C.’s bottom line. Construction workers, including various trades are typically welcomed.
The B.C. PNP is available to almost all employers facing difficulties finding qualified persons to take on good and typically decently paying jobs. Once nominated, a B.C. PNP applicant may apply for a work permit that will bridge the gap between nomination and landing as a permanent resident. Under this program, a foreign worker can typically start work within a few of months of filing an application in the PNP office.
So as the federal government offloads its responsibilities, the provinces are filling in the gaps. In many respects, this trend reflects our political landscape — national identity coupled with regional diversity. We may actually be on the right track.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at rnrosenberg@larlee.com or call 604-681-9887.
Sponsorship Debts
Many Canadian citizens and permanent residents see sponsorships for what they are; an effective means to reunite their families in Canada. But what most sponsors don’t realize is that when they sign a sponsorship agreement they are signing more than just a ticket to Canada for a loved one, they are signing up for some serious responsibility.
When signing a sponsorship agreement, a sponsor makes four promises. The first is to provide the sponsored person and that person’s family members with all “basic requirements” for the length of the sponsorship agreement. Basic requirements include food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health, including dental care and eye care.
The second promise is to honour the sponsorship agreement, no matter what other financial obligations or other personal circumstances arise.
The third promise is that the sponsored person and his or her family will not need to apply for social assistance benefits.
The fourth promise is to promptly respond to requests for help from the sponsored person and his or her family members by giving money, buying items or providing services for their living expenses.
The promises made under a sponsorship agreement last for the term of the agreement, which can range from 3 years to 10 years, depending on the relationship between the sponsor and the sponsored person.
What is important about these promises is that they are enforceable by the government of Canada. If, for example, a sponsored immigrant goes on welfare or some other social assistance that is paid for by a provincial or federal program, the government of Canada or a provincial government can collect money from the sponsor equal to the social assistance paid to the sponsored immigrant.
If you are considering sponsorship or if you have sponsored someone be sure to know your rights as the consequences of breaking these agreements are severe.
In recent times, the British Columbia provincial government has increased its efforts to collect on sponsorship debts by taking collection actions against sponsors in default. In some cases, the provincial government is trying to collect over $100,000 from some sponsors that failed to provide “basic requirements” for the sponsored persons.
In a typical case, a sponsored person will go on welfare because they can’t find work in Canada. Welfare payments will not be refused by the province if the person otherwise qualifies, even though a sponsorship agreement is in place. Once the province recognizes the existence of a sponsorship agreement, they try to collect all of the welfare payments from the sponsor.
In some cases the provincial government registered liens against sponsors’ homes and in others they have sued. Default on a sponsorship agreement will also prevent a sponsor from ever sponsoring another person until their debt is repaid.
Sponsorship agreements are generally enforceable, but there are circumstances where they may not be. For example, if the sponsor is the victim of abuse at the hands of the sponsored person, the sponsorship agreement may not be enforceable. There are other grounds that may make a sponsorship agreement unenforceable at law; however these grounds have not been tested in the courts.
If the government is trying to collect a sponsorship debt from you as a sponsor, be sure to know your rights before you pay the government a single penny. In some cases a debt will not be collectable at all while in other cases, there will be severe consequences.
When signing a sponsorship agreement, a sponsor makes four promises. The first is to provide the sponsored person and that person’s family members with all “basic requirements” for the length of the sponsorship agreement. Basic requirements include food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health, including dental care and eye care.
The second promise is to honour the sponsorship agreement, no matter what other financial obligations or other personal circumstances arise.
The third promise is that the sponsored person and his or her family will not need to apply for social assistance benefits.
The fourth promise is to promptly respond to requests for help from the sponsored person and his or her family members by giving money, buying items or providing services for their living expenses.
The promises made under a sponsorship agreement last for the term of the agreement, which can range from 3 years to 10 years, depending on the relationship between the sponsor and the sponsored person.
What is important about these promises is that they are enforceable by the government of Canada. If, for example, a sponsored immigrant goes on welfare or some other social assistance that is paid for by a provincial or federal program, the government of Canada or a provincial government can collect money from the sponsor equal to the social assistance paid to the sponsored immigrant.
If you are considering sponsorship or if you have sponsored someone be sure to know your rights as the consequences of breaking these agreements are severe.
In recent times, the British Columbia provincial government has increased its efforts to collect on sponsorship debts by taking collection actions against sponsors in default. In some cases, the provincial government is trying to collect over $100,000 from some sponsors that failed to provide “basic requirements” for the sponsored persons.
In a typical case, a sponsored person will go on welfare because they can’t find work in Canada. Welfare payments will not be refused by the province if the person otherwise qualifies, even though a sponsorship agreement is in place. Once the province recognizes the existence of a sponsorship agreement, they try to collect all of the welfare payments from the sponsor.
In some cases the provincial government registered liens against sponsors’ homes and in others they have sued. Default on a sponsorship agreement will also prevent a sponsor from ever sponsoring another person until their debt is repaid.
Sponsorship agreements are generally enforceable, but there are circumstances where they may not be. For example, if the sponsor is the victim of abuse at the hands of the sponsored person, the sponsorship agreement may not be enforceable. There are other grounds that may make a sponsorship agreement unenforceable at law; however these grounds have not been tested in the courts.
If the government is trying to collect a sponsorship debt from you as a sponsor, be sure to know your rights before you pay the government a single penny. In some cases a debt will not be collectable at all while in other cases, there will be severe consequences.
BC MSP Coverage
In my practise I am increasingly finding that new immigrants, temporary workers, international students, and family class applicants already in Canada are not aware that they are, in many cases, eligible for coverage under British Columbia’s Medical Service’s Plan (“MSP”).
Basically, the rules provide that in addition to Canadian citizens and permanent residents, some persons temporarily in the province are entitled to apply for care cards.
Eligibility for coverage under MSP is available to persons who are Canadian citizens or who have been lawfully admitted to Canada for permanent residence, as long as the applicant makes his/her home in BC and is physically present in BC for at least 6 months in a calendar year. The coverage extends to persons who are “deemed residents”, and that is where students, workers and family class applicants fit in.
People on work permits or study permits in BC can be “deemed residents”. They will be eligible for MSP coverage if their visas/permits are valid for 6 months or more, if the person remains in status and makes their home in BC and is physically present in BC for at least 6 months in a calendar year.
“Deemed residents” also include non-resident spouses and children (including adopted children) of residents. These people will be eligible if they have applied for status, like work permits or study permits or visitor status, as long as that application remains active and the other requirements set out above have been met. Non-resident spouses and children of residents will also be eligible if the resident spouse has filed a sponsorship application and paid the immigration processing fees for their spouse and or children who wish to apply for MSP coverage.
Basically, those not eligible are those without status or with only visitor status without having a pending sponsorship application filed with immigration Canada.
The requirement to be physically present in BC for at least 6 months in a calendar year is subject to a number of exceptions because not everyone comes to Canada with at least 6 months left in the year. Essentially, if you arrive in Canada after June 30, the 6 month requirement is effectively waived.
Once you file an application for MSP coverage, you must wait for eligibility. The wait period for eligibility is calculated by adding the month in which the applicant arrived in BC plus two additional months. For example, if you arrived on December 25, you would be eligible on March 1. If you arrived on January 1, you would be eligible on April 1.
Some applicants are not subject to the wait period, including babies born to residents, children adopted by a resident and convention refugees.
The rules for eligibility are complicated and confusing. At times, in my experience, HIBC, the private company administering MSP, fails to understand the rules themselves. We have seen a significant decrease in the understanding and application of these rules on the part of HIBC since they received the portfolio from the province.
If you believe you are eligible, persistence may be required to get the results you deserve. Given the cost of health care in this province without MSP coverage, a little hard work is well worth the effort.
Basically, the rules provide that in addition to Canadian citizens and permanent residents, some persons temporarily in the province are entitled to apply for care cards.
Eligibility for coverage under MSP is available to persons who are Canadian citizens or who have been lawfully admitted to Canada for permanent residence, as long as the applicant makes his/her home in BC and is physically present in BC for at least 6 months in a calendar year. The coverage extends to persons who are “deemed residents”, and that is where students, workers and family class applicants fit in.
People on work permits or study permits in BC can be “deemed residents”. They will be eligible for MSP coverage if their visas/permits are valid for 6 months or more, if the person remains in status and makes their home in BC and is physically present in BC for at least 6 months in a calendar year.
“Deemed residents” also include non-resident spouses and children (including adopted children) of residents. These people will be eligible if they have applied for status, like work permits or study permits or visitor status, as long as that application remains active and the other requirements set out above have been met. Non-resident spouses and children of residents will also be eligible if the resident spouse has filed a sponsorship application and paid the immigration processing fees for their spouse and or children who wish to apply for MSP coverage.
Basically, those not eligible are those without status or with only visitor status without having a pending sponsorship application filed with immigration Canada.
The requirement to be physically present in BC for at least 6 months in a calendar year is subject to a number of exceptions because not everyone comes to Canada with at least 6 months left in the year. Essentially, if you arrive in Canada after June 30, the 6 month requirement is effectively waived.
Once you file an application for MSP coverage, you must wait for eligibility. The wait period for eligibility is calculated by adding the month in which the applicant arrived in BC plus two additional months. For example, if you arrived on December 25, you would be eligible on March 1. If you arrived on January 1, you would be eligible on April 1.
Some applicants are not subject to the wait period, including babies born to residents, children adopted by a resident and convention refugees.
The rules for eligibility are complicated and confusing. At times, in my experience, HIBC, the private company administering MSP, fails to understand the rules themselves. We have seen a significant decrease in the understanding and application of these rules on the part of HIBC since they received the portfolio from the province.
If you believe you are eligible, persistence may be required to get the results you deserve. Given the cost of health care in this province without MSP coverage, a little hard work is well worth the effort.
Is permanent forever? What all permanent residents need to know about their status.
For those of you who haven’t figured it out yet, “permanent” resident status isn’t really permanent; rather, it is conditional. And by conditional I mean that if you don’t meet certain obligations under Canada’s immigration laws, you can lose your status and find yourself back in your country of citizenship.
All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.
So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.
Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.
There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.
The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.
So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.
If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.
First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)
Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.
All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.
So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.
Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.
There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.
The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.
So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.
If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.
First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)
Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.
Humanitarian and Compassionate Grounds
Immigration Law
Ryan N. Rosenberg
One last chance
When all else fails, you can apply for immigration to Canada on humanitarian and compassionate grounds.
Even if you don’t qualify to immigrate under one of Canada’s immigration programs, you may still qualify. Now, before you stop reading this article because I seem to be contradicting myself, allow me to explain.
Section 25 of the Immigration and Refugee Protection Act (IRPA) allows Citizenship and Immigration Canada (CIC) to grant a foreign national permanent resident status or an exemption from any applicable criteria or obligation in IRPA based on humanitarian and compassionate (H&C) grounds.
Section 25 is most commonly used in an application for permanent residence from within Canada on H&C grounds, most often by failed refugee claimants and spouses being sponsored from within Canada. CIC even has a specific set of forms for these types of applications.
Although less common, section 25 is also sometimes used by a foreign national who is asking for an exemption from any applicable criteria or obligation in IRPA. For example, applicants who do not have enough points under the federal skilled work program, applicants who cannot be sponsored, persons who fail to meet the residency requirement or persons who fail their immigration medical examinations may request exemptions on H&C grounds. So even though the applicants don’t meet all of the normal criteria, their application still has a chance of being approved on H&C grounds.
With exception of an application for permanent residence from within Canada, there are no special application forms for an H&C request; rather it is usually made in writing along with an application filed under one of CIC’s programs.
The list of examples of where you could ask for an exemption is almost infinite, whether it is in relation to a study permit, work permit, live-in caregiver application or other situation. As long as there are specific criteria or obligations, an applicant can request an exemption from those requirements on H&C grounds.
Now, before you get too excited, asking is one thing, being granted an exemption is another. Immigration officers have discretion to decide whether an applicant’s H&C reasons are strong enough to justify an exemption. The threshold is quite high and difficult to meet in many circumstances.
CIC’s policy manuals require that H&C grounds meet a threshold of “unusual and undeserved or disproportionate hardship.” This policy was designed to allow visa officers to approve deserving cases not anticipated under IRPA.
CIC has an obligation to consider all requests and must provide reasons if they refuse an application. If the reasons are unsatisfactory, an applicant may apply for judicial review of CIC’s decision in the Federal Court of Canada.
To make a successful H&C application, it is the applicant’s responsibility to clearly explain his or her H&C grounds to CIC. To name but a few, an applicant may have unique family circumstances, health reasons, exceptional ties to a community, establishment in Canada, religious beliefs and personal risk. The list goes on and on.
The courts have reviewed countless applications on H&C grounds and have set some important precedents. So it may be in an applicant’s interest to review relevant case law before filing an application on H&C grounds.
Canada’s immigration laws are complex and the requirements can be onerous. Section 25 can be a cure to many problems, but like many medications, it doesn’t work for everyone.
Ryan N. Rosenberg
One last chance
When all else fails, you can apply for immigration to Canada on humanitarian and compassionate grounds.
Even if you don’t qualify to immigrate under one of Canada’s immigration programs, you may still qualify. Now, before you stop reading this article because I seem to be contradicting myself, allow me to explain.
Section 25 of the Immigration and Refugee Protection Act (IRPA) allows Citizenship and Immigration Canada (CIC) to grant a foreign national permanent resident status or an exemption from any applicable criteria or obligation in IRPA based on humanitarian and compassionate (H&C) grounds.
Section 25 is most commonly used in an application for permanent residence from within Canada on H&C grounds, most often by failed refugee claimants and spouses being sponsored from within Canada. CIC even has a specific set of forms for these types of applications.
Although less common, section 25 is also sometimes used by a foreign national who is asking for an exemption from any applicable criteria or obligation in IRPA. For example, applicants who do not have enough points under the federal skilled work program, applicants who cannot be sponsored, persons who fail to meet the residency requirement or persons who fail their immigration medical examinations may request exemptions on H&C grounds. So even though the applicants don’t meet all of the normal criteria, their application still has a chance of being approved on H&C grounds.
With exception of an application for permanent residence from within Canada, there are no special application forms for an H&C request; rather it is usually made in writing along with an application filed under one of CIC’s programs.
The list of examples of where you could ask for an exemption is almost infinite, whether it is in relation to a study permit, work permit, live-in caregiver application or other situation. As long as there are specific criteria or obligations, an applicant can request an exemption from those requirements on H&C grounds.
Now, before you get too excited, asking is one thing, being granted an exemption is another. Immigration officers have discretion to decide whether an applicant’s H&C reasons are strong enough to justify an exemption. The threshold is quite high and difficult to meet in many circumstances.
CIC’s policy manuals require that H&C grounds meet a threshold of “unusual and undeserved or disproportionate hardship.” This policy was designed to allow visa officers to approve deserving cases not anticipated under IRPA.
CIC has an obligation to consider all requests and must provide reasons if they refuse an application. If the reasons are unsatisfactory, an applicant may apply for judicial review of CIC’s decision in the Federal Court of Canada.
To make a successful H&C application, it is the applicant’s responsibility to clearly explain his or her H&C grounds to CIC. To name but a few, an applicant may have unique family circumstances, health reasons, exceptional ties to a community, establishment in Canada, religious beliefs and personal risk. The list goes on and on.
The courts have reviewed countless applications on H&C grounds and have set some important precedents. So it may be in an applicant’s interest to review relevant case law before filing an application on H&C grounds.
Canada’s immigration laws are complex and the requirements can be onerous. Section 25 can be a cure to many problems, but like many medications, it doesn’t work for everyone.
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