Protecting PR Status: Humanitarian and Compassionate Considerations

Over the last several months, I have been writing about how a permanent resident of Canada can maintain their permanent resident status. I’ve written about how physical presence in Canada, overseas employment by a Canadian company and accompanying family members under certain circumstances may all satisfy the residency obligation. Remember, a permanent resident of Canada will satisfy the residency obligation if they meet one of these tests for 730 days in a five-year period.

But what if they can’t?

Permanent residents who cannot meet one of the residency obligation tests set out above will get one last kick at the can – humanitarian and compassionate grounds. If an applicant falls short or doesn’t even come close to the 730 day requirement, an Immigration Officer must consider humanitarian and compassionate considerations relating to the permanent resident, taking into account the best interests of a child directly affected by the officer’s decision. These considerations must justify the permanent resident keeping their status even though they have failed to meet the residency obligation.

There is no definitive list of what types of factors an officer will consider. Each case is judged on its own merit, making it very difficult to predict when an applicant will be successful in an application based on humanitarian and compassionate grounds and when they will fail. Some of the factors which may be important include family medical situations overseas which have kept a permanent resident out of Canada (sick children or elderly parents, for example), custody battles or family breakdown outside of Canada, schooling or even mandatory military service. The options are endless.

Whatever the reason, the onus is on the applicant to supply the officer with compelling evidence in support of their request for humanitarian and compassionate relief. This evidence may include letters from doctors, letters from schools, court documents, expert reports, old passports, bank statements, and guardianship documents and so on. Again, the options are endless.

The one area we are routinely asked about is economic factors. If a permanent resident is outside of Canada only because they have a better job lined up than in Canada, that reason alone is not likely to sway an officer to decide in a permanent resident’s favour.

At the end of the day, the onus is on the applicant to convince the officer that they deserve relief on humanitarian and compassionate grounds. It is considered an ‘exceptional response’ to a particular set of circumstances. The hardship resulting from loss of status must meet the standard of “unusual an undeserved, or disproportionate.” This is a legal standard and applicants are strongly recommended to seek qualified advice before relying on this type of exemption.

Watch for an upcoming article on appeal rights. Just because an officer refuses an application, that doesn’t mean that the decision will stand.

Ryan Rosenberg is an Immigration Lawyer and partner at Larlee Rosenberg in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his blog at www.immigrantlaw.ca.