In immigration applications, such as permanent resident applications, one of the most important issues for applicants to be aware of concerns what is known in the profession as “H&C” claims; that is, claims or applications based upon “Humanitarian & Compassionate” reasons. Often, if someone applying for permanent resident status (or another immigration-related application) is denied and deemed inadmissible to Canada, they can seek an exemption by citing humanitarian and compassionate grounds. Whether someone can qualify for admission under “H&C” grounds is complex and generates plenty of cases in Canadian immigration law. This is because there are several reasons someone may be barred from entry, such as medical inadmissibility, and several grounds upon which one can argue that H&C reasons should provide an exemption.
The recent case Juan v. Canada (Citizenship and Immigration) illustrates a typical example of the factors involved in evaluating how H&C claims should be considered, but also how serves to demonstrate the potential for the legal proceedings involved to be unfair to applicants without the help of legal counsel to safeguard their rights.
In the Juan case, the Applicant was a Filipino citizen who arrived in Canada on June 22, 2012, on a work permit issued under Canada’s “Live-in Caregiver Program”. The Applicant’s spouse, who has been diagnosed with chronic kidney disease in addition to other medical conditions, and her daughter still live in the Philippines. The Applicant applied for permanent resident status in Canada, listing her husband and daughter as accompanying dependents on her application. She received a letter in return from an immigration officer with Immigration, Refugees, and Citizenship Canada (IRCC) advising her that her husband had been determined to be a person whose health condition might reasonably be expected to cause excessive demand on health services in Canada – what’s known as “medical inadmissibility”.
Upon receiving this letter, the Applicant obtained the services of a lawyer and made submissions to rebut the medical inadmissibility finding. However, she also sought (under Section 25(1) of the Immigration and Refugee Protection Act) an exemption based on “H&C” grounds in the event that her challenge of her husband’s medical inadmissibility failed. The Applicant’s H&C argument was based on three points:
- Her degree of establishment in Canada (she had now been in Canada several years and had started to establish roots here),
- The impact of losing her Canadian income on her family if she was forced to return to the Philippines to seek employment, and
- The best interests of her daughter.
Despite having a three-fold argument, the H&C claim was denied by the immigration officer. The Applicant appealed the decision, asking the courts to overrule the decision.
Applicant Alleged Officer Failed to Properly Consider Certain Elements of Her Claim
Upon judicial review, the main issue the Court had to consider was the immigration officer’s analysis of the H&C claim and their reason for denying the claim. The Applicant pointed out that the analysis provided by the officer failed to indicate whether or how certain elements of her claim were considered. She argued that the decision provided by the immigration officer had not properly addressed her claim indicating that she would be unable to continue contributing to her husband’s medical expenses or her daughter’s educations costs if she was forced to return to the Philippines, nor her claim that she would face age and sex discrimination in the Philippines when seeking employment there. The immigration officer’s decision indicated that he found the Applicant’s claims that she couldn’t pay for her husband’s medical and daughter’s education expense to be “speculative as the applicant has not put forth objective documentary evidence to support that she will be unable to secure employment in the Philippines”.
Court Finds Officer Provided “Strawman Argument” as Reason for Denial
The Court agreed with the Applicant, effectively indicating that the immigration officer had denied the claim what might colloquially be known as a “strawman argument”. That is, refuting or making a counter-argument to an argument or claim the Applicant had never made in the first place. As the Court noted “The Applicant did not argue that she would be unable to find work; rather she submitted that given the wages paid in the Philippines for the type of work she was likely to find there, she would be unable to support her family, in particular her husband’s medical expenses and her daughter’s education. This is not directly addressed [by the immigration officer] in the decision.”
As for the specific evidence that the Applicant cited in her submissions that indicated she would face age and sex discrimination in seeking employment in the Philippines, the Court noted that it had been seemingly ignored altogether.
In the eyes of the Court, the issues concerning the Applicant’s ability to pay for her husband’s medical bills and daughter’s education went to the heart of her claim for an exemption based upon Humanitarian and Compassionate grounds. The immigration officer’s failure to explain how these issues were considered in the denial of the H&C claim was considered such an egregious error as to render the decision “unreasonable” by the Courts. This allowed the application to be sent back for reconsideration by a different immigration officer (one who presumably would pay heed to the Court’s judgement to take the aforementioned aspects of the Applicant’s claim into account).
Common Grounds for H&C Claims
This case is a useful example of how H&C claims work as it involved a number of factors that typically come into play when a claim will be considered by the government (or if necessary, the courts). These include:
- What is in the best interests of a child or minor?
- Will the Applicant potentially face hardship if they are forced to go back to their home country?
- Is the Applicant able (or have they been able) to establish their lives in Canada?
- Are there medical concerns or factors that would affect the Applicant or an Applicant’s loved one/family member?
This is by no means an exhaustive list of all the factors that can be considered in H&C Claims, just some of the common ones that happened to be in this particular case. But what the case also demonstrates is that H&C exemptions to inadmissibility findings are not especially easy to obtain. They are only granted if you can convince the immigration officer receiving the claim that you have sufficient grounds and suitable circumstances for an exemption to be made and as this case demonstrates, immigration officers can make errors that could require an appeal to the Courts to correct. Therefore, it’s highly recommended to have legal representation to help guide you through the application process and provide sufficient supporting documentation, whether these applications be for work permits, student visas or permanent resident applications.
The lawyers at Prudent Law in Mississauga are trusted advocates in immigration law, including permanent resident applications, temporary residency applications and citizenship and passport applications. We provide practical advice and passionate representation in a wide variety of immigration applications. If you are facing a legal dispute and you’d like to discuss it with one of our experienced litigation lawyers, please call us at 905-361-9789 or contact us online.