Humanitarian and Compassionate Grounds — s 25
Overview
Section 25 of IRPA allows the Minister to grant an exemption from any requirement of the Act or regulations on humanitarian and compassionate (H&C) grounds, allowing a foreign national who does not meet standard eligibility requirements to obtain permanent residence. The decision is discretionary. The Supreme Court of Canada established in Kanthasamy v Canada [2015] 3 SCR 909 that the standard is what a reasonable person in a civilised community would consider as warranting relief, having regard to all the circumstances. Key factors include establishment in Canada, the best interests of affected children, and the hardship of being required to leave Canada.
H&C applications are a safety valve in the immigration system — not an alternative immigration stream. They are intended for cases that fall outside the standard programs and where strict application of the rules would produce a result that is, in all the circumstances, disproportionate or unjust. A successful H&C application is not a right — it is a grant of Ministerial discretion.
Eligibility
Who can apply?
Any foreign national may apply for H&C consideration, whether inside or outside Canada. The most common applicants are:
- Persons inside Canada who do not meet standard economic or family class requirements
- Persons facing removal whose circumstances have changed significantly
- Failed refugee claimants (12-month bar after negative RPD decision before submitting H&C — s 25(1.2))
- Persons who are inadmissible but whose circumstances warrant an exemption from inadmissibility provisions
What H&C cannot consider — s 25(1.3)
Section 25(1.3) of IRPA expressly prohibits an H&C officer from considering the risks under ss 96 and 97 — the refugee grounds — when deciding an H&C application. The H&C pathway is not an alternative refugee pathway. However, the same facts that give rise to refugee risks may also give rise to hardship in a broader sense, and that broader hardship may be considered.
The Kanthasamy standard
The Supreme Court confirmed in Kanthasamy that the officer must consider all relevant humanitarian and compassionate circumstances together, not apply a rigid checklist. The standard is what a reasonable person in a civilised community would find as warranting relief. Factors are not weighed mechanically — an accumulation of moderate factors can collectively support a grant even where no single factor is dominant.
Selection criteria
Application process
Key factors assessed
1. Establishment in Canada
How integrated is the applicant in Canada? Length of residence, employment, volunteer work, community ties, property ownership, payment of taxes. A person who has been in Canada for 10 years and has built a life here has stronger establishment grounds than a recent arrival.
2. Best interests of the child (BIOC)
Where children (Canadian-born or foreign-born) are affected, their best interests must be assessed. See best interests of the child concept page. BIOC can be a powerful factor where children are Canadian citizens or have been raised in Canada.
3. Hardship of returning to the country of origin
What would the applicant face on return? Country conditions, family separation, loss of established life, health circumstances. This cannot include refugee risks (s 25(1.3)) but can include general country conditions as a component of hardship.
Interaction with removal and PRRA
Submitting an H&C application does not automatically stay a removal order. However, if removal is imminent, the applicant may request a deferral of removal from CBSA pending the H&C decision, or seek a judicial review stay in the Federal Court. A PRRA (Pre-Removal Risk Assessment) is separate from H&C and must also be initiated if the applicant faces risk on return.