Last week I wrote about the residency obligation of Permanent Residents (“PRs”) to retain their status in Canada. What if there were special circumstances that prevented you from being able to meet your residency obligation? You may still be able to retain your PR status as the Immigration and Refugee Protection Act (“Act”) provides flexibility to officers to consider r humanitarian and compassionate (“H&C”) considerations related to your personal circumstances and in exceptional cases allow you to retain your PR status.
When making a PR Card or PR Travel Document application based on H&C grounds, you must be able to explain and prove the extenuating circumstances that prevented you from fulfilling the physical residence requirements. You may be allowed to maintain your PR status if the officer is satisfied that you have sufficient H&C grounds to justify your absences from Canada.
What are “Humanitarian & Compassionate” Considerations?
H&C grounds are factors that demonstrate why you have a compelling reason for not being able to remain in Canada for 2 out of 5 years needed to maintain your PR status. The Act does not provide an exhaustive list of H&C grounds and each application is assessed based on your unique circumstances. The following are some of the factors that may be reviewed when considering H&C grounds:
The immigration authorities will also consider the best interests of any child affected by the decision as being a potential H&C factor. For example, in the case of a father who has not met his residency obligation but his dependent children live in Canada the best interests of his children will be considered if they will be deprived of a relationship with him if he loses his PR status.
When can you introduce H&C grounds?
If you believe that there are sufficient H&C grounds in your case, you will have to provide explanations and documents to demonstrate these grounds as part of your PR Card renewal or PR Travel Document application. You can also provide evidence of H&C grounds if you are required to complete a residency questionnaire or are invited to an interview.
Officers are required to consider all the information and documents that you present in your application. However, they do not have an obligation to ask you for additional information and so the onus is on you to prove your case. Overall, your application must prove that (i) there are compelling H&C factors in your individual circumstances that justify retention of your PR status, (ii) why you were not able to comply with the residency obligation, and (iii) the extent of any hardship that the loss of PR status will cause you and your family members directly affected by the decision.
When an officer determines that H&C considerations relating to a permanent resident justify the retention of permanent resident status, this determination will overcome any breach you have of the residency obligation and you can retain your PR status.
Discretion of officers
If you do not meet the residency obligation and do not fall into one of the exceptions, there is no guarantee that the H&C grounds will be sufficient for you to retain your PR status. There are many cases where PRs have travelled to work overseas because they were not able to find suitable employment in Canada, but unfortunately this is not a sufficient ground for the exercise of this discretion. A positive decision on H&C grounds is an exceptional response to a particular set of circumstances.
Ultimately, a positive decision in such circumstances turns on the discretion of the officer and it is your responsibility to ensure that you are fully informed about the law and your situation and present the most complete and compelling case possible.
Coming Next: Right to Appeal
Next week I will be exploring the your appeal options in case of a negative decisions with regards to your PR status in Canada.
When making a PR Card or PR Travel Document application based on H&C grounds, you must be able to explain and prove the extenuating circumstances that prevented you from fulfilling the physical residence requirements. You may be allowed to maintain your PR status if the officer is satisfied that you have sufficient H&C grounds to justify your absences from Canada.
What are “Humanitarian & Compassionate” Considerations?
H&C grounds are factors that demonstrate why you have a compelling reason for not being able to remain in Canada for 2 out of 5 years needed to maintain your PR status. The Act does not provide an exhaustive list of H&C grounds and each application is assessed based on your unique circumstances. The following are some of the factors that may be reviewed when considering H&C grounds:
- Extent of your non-compliance with the residency obligation: How many have you been physically in Canada during the past 5 years? Did you or a close family member have a medical condition that required attention outside Canada and why could the medical condition not be treated in Canada?
- Circumstances beyond your control for not coming to Canada: Were there compelling circumstances, outside of your control, that led to you remaining outside of Canada? Did you return to Canada at the earliest possible opportunity? Did you leave Canada as a child while accompanying your parents?
- Your establishment in and outside Canada: Are you a permanent resident or citizen of a country other than Canada? What steps have you taken to establish in Canada permanently? What steps have you taken to sever ties with your country of origin? What linkages and ties have you maintained in Canada?
- Your current presence and the degree of consequential hardship if you lose your PR status: If you lose your PR Status will you have to voluntarily leave or be removed from Canada? What hardship will you or close family members face if you lose your PR status?
The immigration authorities will also consider the best interests of any child affected by the decision as being a potential H&C factor. For example, in the case of a father who has not met his residency obligation but his dependent children live in Canada the best interests of his children will be considered if they will be deprived of a relationship with him if he loses his PR status.
When can you introduce H&C grounds?
If you believe that there are sufficient H&C grounds in your case, you will have to provide explanations and documents to demonstrate these grounds as part of your PR Card renewal or PR Travel Document application. You can also provide evidence of H&C grounds if you are required to complete a residency questionnaire or are invited to an interview.
Officers are required to consider all the information and documents that you present in your application. However, they do not have an obligation to ask you for additional information and so the onus is on you to prove your case. Overall, your application must prove that (i) there are compelling H&C factors in your individual circumstances that justify retention of your PR status, (ii) why you were not able to comply with the residency obligation, and (iii) the extent of any hardship that the loss of PR status will cause you and your family members directly affected by the decision.
When an officer determines that H&C considerations relating to a permanent resident justify the retention of permanent resident status, this determination will overcome any breach you have of the residency obligation and you can retain your PR status.
Discretion of officers
If you do not meet the residency obligation and do not fall into one of the exceptions, there is no guarantee that the H&C grounds will be sufficient for you to retain your PR status. There are many cases where PRs have travelled to work overseas because they were not able to find suitable employment in Canada, but unfortunately this is not a sufficient ground for the exercise of this discretion. A positive decision on H&C grounds is an exceptional response to a particular set of circumstances.
Ultimately, a positive decision in such circumstances turns on the discretion of the officer and it is your responsibility to ensure that you are fully informed about the law and your situation and present the most complete and compelling case possible.
Coming Next: Right to Appeal
Next week I will be exploring the your appeal options in case of a negative decisions with regards to your PR status in Canada.
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