Humanitarian and compassionate grounds — the test
Overview
Section 25 of IRPA allows the Minister of Immigration to grant an exemption from immigration requirements to a foreign national who does not meet standard immigration criteria but whose circumstances engage humanitarian and compassionate (H&C) considerations. The standard, as articulated by the Supreme Court of Canada in Kanthasamy v Canada (2015), asks whether a reasonable person with discretionary power, knowing all the facts, would consider it harsh and unjust to enforce the immigration requirements. H&C is a genuinely discretionary relief and requires balancing all circumstances, with the best interests of any directly affected child as an important consideration.
H&C applications are a last-resort mechanism for persons who do not qualify under any standard immigration category but have compelling personal circumstances. The power is discretionary — IRCC is not required to grant an H&C exemption even in sympathetic cases. The volume of H&C applications is high, and processing times are substantial.
Legal basis
- IRPA s 25(1) — the H&C discretion: the Minister may, on application, exempt a foreign national from any applicable requirement of the Act or the regulations if satisfied that it is justified by humanitarian and compassionate considerations, taking into account the best interests of a child directly affected
- IRPA s 25(1.3) — the Minister shall not consider the factors that are taken into account in determining whether a person is a Convention refugee under s 96 or person in need of protection under s 97 (H&C is not a substitute for the refugee process)
- Kanthasamy v Canada (Citizenship and Immigration) [2015] 3 SCR 909 — the Supreme Court of Canada decision establishing the current H&C standard
How it works
The Kanthasamy standard
In Kanthasamy, the Supreme Court rejected a narrower reading of H&C that focused only on "unusual and undeserved or disproportionate hardship." The Court held that the H&C assessment must be holistic and global — considering all relevant circumstances together, not as a series of independent threshold tests. The governing question is: would a reasonable person in the decision-maker's position, who is "compassionate and a fair-minded person fully informed of all the facts," consider it harsh and unjust not to grant the exemption?
Key factors in H&C applications
1. Establishment in Canada
Long-term presence and establishment in Canada — employment history, community ties, volunteer activities, Canadian family, years of residence — is a significant factor. The longer and more integrated the applicant's presence in Canada, the more disruptive removal would be.
2. Best interests of the child (BIOC)
Where there are minor children directly affected by the application (including Canadian citizen children), the best interests of those children must be assessed as an important factor. The decision-maker must be "alert, alive and sensitive" to the children's interests (Baker v Canada). The BIOC analysis does not automatically require the H&C application to succeed, but significant weight must be given to the children's welfare.
3. Hardship on removal
The hardship the applicant and their family would face if removed from Canada is a central consideration, including:
- Separation from Canadian family members
- Country of origin conditions (poverty, lack of healthcare, family separation)
- Age and health of the applicant
- Disruption to children's education and development
Note: s 25(1.3) prevents H&C applications from considering refugee-type risks (persecution, torture) — those must go through the refugee process.
Limits of the H&C power
- H&C is not a substitute for the refugee or PRRA process
- A pending H&C application does not automatically stay removal
- Persons who have received two refused H&C applications cannot reapply for 12 months