Humanitarian and Compassionate (H&C) Applications in Canada: A Complete Guide

Canada is known for its inclusive immigration policies, but not everyone fits neatly into the categories of economic immigration, family sponsorship, or refugee protection. For those who are ineligible under these streams and facing the end of their temporary status or inadmissibility, an often-overlooked pathway exists the Humanitarian and Compassionate (H&C) application.

An H&C application is not just another immigration category; it is a request for exceptional relief under Canada’s Immigration and Refugee Protection Act (IRPA). Specifically, section 25(1) of the IRPA grants immigration officers the discretionary power to approve permanent residence applications from individuals who do not meet the usual requirements of the Act. This process allows officers to consider humanitarian and compassionate considerations that may warrant an exemption from those requirements.

The essence of an H&C application lies in its ability to address exceptional circumstances. It provides a pathway for foreign nationals to remain in Canada or apply for permanent residence when removal or adherence to typical immigration rules would cause undue hardship. Unlike other pathways, H&C is not a right but a privilege, granted in rare and compelling situations where rigid enforcement of immigration rules would seem unjust in light of a person’s unique circumstances.

How Does an H&C Application Work?

H&C applications are fundamentally different from other immigration streams because they hinge on discretion and a holistic assessment of the applicant’s circumstances. This process evaluates not only the personal hardships the applicant would face if required to leave Canada but also their ties to the country, their contributions to the community, and the broader context of their situation.

While H&C applications allow for some flexibility in how one presents their arguments, the success of the process greatly depends on evidence. Applicants must present compelling evidence that demonstrates why they deserve to remain in Canada on humanitarian grounds, and the decision-makers are required to look at all relevant factors, including the applicant’s level of establishment in Canada, the best interests of any children affected by the decision, adverse country conditions, and health-related considerations, etc. Each application is unique, and success hinges on the ability to paint a comprehensive picture of the applicant’s circumstances.

In this blog post, we’ll dive deep into the key elements of an H&C application, breaking down what makes it distinct, who it might benefit, and how factors like hardship, establishment, and the best interests of children influence decision-making. Whether you are someone considering this pathway or just seeking to understand it better, this guide will provide the clarity and insights you need to navigate this complex but critical option in Canadian immigration.

Understanding Hardship in H&C Applications

Hardship is a cornerstone of any humanitarian and compassionate (H&C) application. It represents the challenges an applicant would face if required to leave Canada and apply for permanent residence from abroad. While hardship remains a key consideration, it is no longer treated as a rigid “test.” Instead, it serves as part of a broader, holistic assessment of whether an applicant’s circumstances warrant relief under section 25(1) of the Immigration and Refugee Protection Act (IRPA).

Historically, hardship was evaluated through the lens of “unusual, undeserved, or disproportionate hardship,” a standard that required applicants to meet a narrow threshold. This approach often resulted in a segmented analysis, where individual factors were weighed in isolation. However, the Supreme Court of Canada’s decision in Kanthasamy v. Canada (Citizenship and Immigration) (2015 SCC 61) marked a significant shift. The Court emphasized that these descriptors should be viewed as instructive rather than prescriptive, allowing for a more compassionate and flexible approach. Officers are now expected to assess the applicant’s circumstances as a whole, avoiding rigid thresholds and focusing on whether the situation merits relief based on its unique details.

What Does Hardship Mean in H&C Applications?

Hardship in the H&C context goes beyond mere inconvenience. It encompasses a wide range of challenges, including emotional, psychological, and social difficulties, as well as physical and economic obstacles. Common sources of hardship include, but are not limited to:

• Country Conditions: Applicants may cite political instability, widespread violence, discrimination, or lack of opportunities in their home countries. Officers must assess how these general conditions specifically impact the applicant. For instance, while an applicant may not have been directly targeted by discrimination, belonging to a marginalized group may limit their access to employment, education, or other basic rights.

• Health and Medical Challenges: Applicants with medical conditions often claim hardship based on the unavailability of treatment in their home country. To substantiate this, they must provide evidence from medical professionals and documentation about healthcare access in their country of origin. Factors such as prohibitive costs, inadequate facilities, or limited availability of medicines are relevant to the analysis.

• Family Separation: Separation from loved ones in Canada is a significant contributor to hardship. The emotional and logistical challenges of being apart from family can weigh heavily in an officer’s decision.

• Establishment in Canada: The more rooted an applicant is in Canada—through employment, community ties, or long-term residence—the greater the hardship they may face if removed. Establishment and hardship are closely linked, as disrupting a stable life in Canada can amplify the difficulty of reintegrating into the applicant’s country of origin.

A Shift to Holistic Assessment

The Kanthasamy decision transformed how hardship is analyzed, emphasizing a holistic approach that considers the applicant’s circumstances in their entirety. There the Court said:

The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).  As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case.

As such, IRCC officers must avoid reducing hardship to a checklist or viewing individual factors in isolation. Instead, they are tasked with evaluating how various elements interact, such as how adverse country conditions may exacerbate the challenges of family separation or how medical issues could compound the difficulty of returning to a country with inadequate healthcare infrastructure.

The Chirwa framework, which asks whether a reasonable person in a civilized society would feel compelled to relieve the applicant’s misfortune, further underscores this equitable approach. It shifts the focus from rigid thresholds to a more empathetic, context-driven evaluation, and the officer must assess:

“…whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.”

The Broader Dimensions of Hardship

Hardship is not just about physical or financial difficulties; it also includes emotional and psychological impacts. For children, the Supreme Court in Kanthasamy recognized that they often experience hardship differently and more profoundly than adults. This underscores the need for decision-makers to approach each case with sensitivity and an understanding of how hardship can manifest uniquely in different circumstances.

While hardship is no longer a standalone test, it remains a critical lens through which H&C applications are evaluated. A compelling application must weave hardship into a cohesive narrative, supported by evidence, that demonstrates why the applicant’s circumstances meet the compassionate objectives of section 25(1) of the IRPA.

In the next section, we will explore other factors that weigh into the H&C assessment, including the best interests of children, adverse country conditions, and the applicant’s establishment in Canada. These factors, taken together, form the foundation of a comprehensive and compassionate decision-making process.

Factors Considered in H&C Applications

When assessing a humanitarian and compassionate (H&C) application, immigration officers evaluate a wide range of factors to determine whether relief is warranted. These factors, outlined on the IRCC website, include:

• Establishment in Canada (for in-Canada applications);

• Ties to Canada;

• The best interests of any children directly affected by the decision;

• Factors in the country of origin, including adverse country conditions;

• Health considerations, such as the inability of a country to provide adequate medical treatment;

• Family violence considerations;

• Consequences of family separation;

• Establishment in Canada due to the inability to leave;

• The ability to establish in Canada (for overseas applications); and

• Any unique circumstances that might merit relief.

It is crucial to emphasize that this list is not exhaustive. Officers are not confined to these factors and must consider all relevant information provided by the applicant, as well as any other circumstances that emerge during their assessment. Additionally, officers are instructed to take a holistic approach, analyzing the interplay between factors rather than evaluating them in isolation.

Best Interests of the Child (BIOC): A Central Consideration

Among the factors, the “best interests of any child affected by the decision” holds a unique and prominent place in H&C applications. Section 25(1) of the Immigration and Refugee Protection Act (IRPA) specifically requires officers to consider the impact of their decision on children. This principle ensures that children’s welfare is not overlooked and is given substantive weight in the overall analysis.

The Supreme Court of Canada’s decision in Kanthasamy v. Canada (Citizenship and Immigration) emphasized that the BIOC analysis must be more than a cursory acknowledgment—it requires careful and detailed consideration of all evidence related to the child’s circumstances. Officers must view the situation from the child’s perspective, asking what decision would best serve their emotional, social, and physical welfare.

Children’s experiences of hardship are often more profound than those of adults. For instance, removal from Canada could disrupt a child’s education, sever their ties to their community, or separate them from their support system. The Supreme Court in Kanthasamyalso clarified that circumstances that might not warrant relief for an adult could nonetheless justify relief for a child, reflecting their unique vulnerability.

Importantly, the best interests analysis extends beyond biological or dependent children. It includes any child directly affected by the decision, whether they reside in Canada or abroad. In Ranji v. Canada, for example, the Federal Court recognized the importance of considering how a parent’s removal from Canada could impact children living in another country—highlighting the interconnected nature of these decisions.

While IRCC guidelines generally limit the BIOC analysis to children under 18, the courts have found that the interests of older youth may also be relevant in certain circumstances, particularly if they remain dependent on the applicant. Cases like Yoo v. Canada illustrate that factors such as financial dependence or psychological vulnerability can extend the scope of the BIOC analysis.

Adverse Country Conditions: Context Matters

The conditions in an applicant’s country of origin are another critical consideration in H&C applications. Adverse conditions—such as political instability, violence, systemic discrimination, or lack of economic opportunities—can amplify the hardship faced by an applicant. Officers must assess these conditions in conjunction with the applicant’s personal circumstances, as noted at para 15 in Sasi v. Canada:

“While … one must consider an applicant’s personal circumstances to see if the country’s general conditions impact that applicant, this does not mean that the relief is not available unless an applicant can “show a link between the evidence of hardship and their individual situations”…”

Adverse country conditions need not directly target the applicant to be relevant. For example, belonging to a marginalized group may expose an individual to systemic inequalities or widespread societal challenges. Similarly, general instability or violence can create an environment where even basic survival is precarious.

At the same time, officers are tasked with balancing these considerations against the availability of redress or relocation within the country of origin. While these options may mitigate certain hardships, they are not always feasible or sufficient to negate the challenges faced by the applicant.

Establishment in Canada: A Critical Factor

Establishment in Canada is another key consideration in humanitarian and compassionate (H&C) applications, particularly for individuals who have built strong ties to their communities and integrated into Canadian society. The degree of an applicant’s establishment is a reflection of their connection to the country, including their contributions, relationships, and overall ability to thrive within Canadian society. While the concept of establishment is significant, it is not about achieving a “magical threshold” or meeting a predefined set of criteria. Instead, officers must evaluate how the applicant’s removal would disrupt their established life, as emphasized in Truong v. Canada at paragraph 18:

“…it is not about reaching a magical threshold of establishment so as to put an applicant “over the top” but rather about whether the disruption of that establishment weighs in favour of granting the exemption (Sebbe at para 21). There is not necessarily a causal relationship between the two; greater establishment does not always lead to greater disruption and hardship if that establishment is disrupted. I appreciate that some level of disruption is a natural by-product of removal from Canada; however, it is the degree of disruption, not necessarily the level of establishment, that instructs hardship and that needs to be assessed.”

What Does Establishment Entail?

Establishment is a multifaceted concept that looks at various indicators of an applicant’s integration into Canadian society. These may include:

• Employment and Financial Stability: Applicants who can demonstrate stable employment, financial independence, and sound financial management often strengthen their case. For example, pay stubs, tax returns, and records of professional development can serve as evidence of economic contribution.

• Community Involvement: Participation in community organizations, volunteering, religious activities, or local events highlights an applicant’s active role in their community. Letters of support from community members, proof of volunteer work, or memberships in local groups can illustrate these connections.

• Family and Social Ties: Strong relationships with family members or friends in Canada can underscore the applicant’s rootedness. These ties often provide emotional and logistical support that would be difficult to replicate elsewhere.

• Education and Skills Development: Enrollment in educational programs, completion of courses, or acquisition of professional skills reflects the applicant’s effort to integrate into Canadian society and improve their prospects.

• Length of Time in Canada: The longer an applicant has been in Canada, the deeper their roots may be, particularly if they have built a stable life over several years.

While establishment is a significant factor, the Supreme Court of Canada in Kanthasamy and subsequent cases like Truong clarified that it is not about achieving a set benchmark. Officers must look at the degree of disruption that removal would cause, rather than simply tallying the applicant’s level of establishment. For instance, an applicant who has been financially self-sufficient and deeply involved in their community might face severe hardship if removed, even if they lack family ties in Canada.

Officers are also instructed to weigh establishment in conjunction with other factors. For example, strong establishment combined with adverse country conditions or health challenges may tip the balance in favor of granting relief. Conversely, limited establishment might still warrant relief if other compelling factors are present.

In some cases, the applicant’s establishment in Canada may have occurred under challenging circumstances, such as prolonged periods without legal status. Courts have ruled that such circumstances should not automatically weigh against the applicant. For example, if an applicant’s inability to leave Canada was due to circumstances beyond their control—such as delays in the immigration process or a temporary suspension of removals—this context must be taken into account.

However, if the applicant deliberately evaded removal or otherwise acted in bad faith, this could negatively affect how their establishment is perceived. Time spent in Canada pending other immigration processes, such as appeals or H&C applications, cannot serve as the sole basis for claiming establishment. Similarly, illegal work in Canada when one remains without a valid legal immigration status can not be used to prove establishment, as was explained in Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000) at para 22:

“I understand that the Applicants hoped that accumulating time in Canada despite a departure order against them might be looked on favourably insofar as they could demonstrate that they have adapted well to this country. In my view, however, applicants cannot and should not be “rewarded” for accumulating time in Canada, when in fact, they have no legal right to do so. In a similar vein, self-sufficiency should be pursued legally, and an applicant should not be able to invoke his or her illegal actions to subsequently claim a benefit such as a Ministerial exemption.”

Evidence of Establishment

To support an H&C application, applicants must provide robust evidence of their establishment. Examples of useful documentation include:

• Letters of support from employers, community leaders, and friends;

• Proof of volunteering or community participation;

• Financial records, such as tax returns and pay stubs;

• Educational transcripts or certificates;

• Photos of family gatherings or community events.

The Federal Court has also emphasized that officers must avoid arbitrary benchmarks when evaluating establishment. As noted in Kachi v. Canada, it is unreasonable for officers to dismiss an applicant’s establishment without defining what constitutes “sufficient” establishment.

Establishment is not a standalone factor—it must be assessed as part of the broader context of an applicant’s circumstances. Officers are required to weigh the applicant’s contributions, ties, and potential for reintegration against other factors like hardship, adverse country conditions, and the best interests of children. This interconnected analysis ensures that the decision-making process remains fair and compassionate.

Health Considerations: Addressing Unique Challenges

Health considerations often form a critical part of humanitarian and compassionate (H&C) applications, particularly when an applicant’s medical needs cannot be met in their home country. This factor goes beyond simply assessing whether treatment is available—it involves examining how the removal would impact the applicant’s overall well-being, taking into account the quality, accessibility, and affordability of care abroad.

Applicants raising health as a factor must demonstrate that they suffer from a medical condition requiring specific treatment and that this treatment is either unavailable or inaccessible in their home country. Evidence typically includes medical reports from qualified professionals detailing the condition, the prescribed treatment, and its importance for the applicant’s health. Additionally, applicants often provide documentation about healthcare conditions in their country, such as reports highlighting deficiencies in the availability or quality of care.

The courts have stressed the importance of a nuanced analysis when assessing health-related claims. In P.M.D. v. Canada, the Federal Court emphasized that decision-makers must go beyond simply determining whether treatment exists in the applicant’s country of origin. Instead, they must consider whether the treatment is realistically accessible and sufficient to address the applicant’s needs. Factors such as cost, hospital conditions, and the availability of necessary medications may reveal significant barriers, even if treatment theoretically exists.

Health considerations also intersect with other elements of H&C applications. For example, the emotional toll of separating from family members in Canada who provide support for the applicant’s condition may exacerbate the hardship of removal. Similarly, an individual undergoing complex treatment in Canada may face severe disruptions if required to relocate, particularly to a country with limited healthcare infrastructure.

Cases such as Gondal v. Canada highlight how these considerations can shape an H&C application. In this case, the applicant required ongoing care for injuries sustained in Canada, and removal would have undermined both their recovery and their access to essential medical services. Courts have consistently held that officers must assess the cumulative impact of removal on the applicant’s health and ensure their analysis reflects the unique challenges posed by medical conditions.

While decision-makers may conduct independent research into healthcare availability in the applicant’s country, procedural fairness requires them to share their findings with the applicant and allow an opportunity to respond. This ensures that the applicant can address discrepancies or provide additional evidence to support their claims.

Adverse Country Conditions: Beyond the Individual

The conditions in an applicant’s country of origin are another pivotal factor in H&C applications, as they provide context for the hardship the applicant might face upon removal. Adverse country conditions, such as political instability, violence, discrimination, or economic deprivation, can significantly amplify the challenges of reintegration.

Officers must consider both the general conditions in the country and how these intersect with the applicant’s specific circumstances. For instance, while widespread violence or economic hardship may affect many people, an applicant belonging to a marginalized or persecuted group might face compounded difficulties. Discrimination, even if systemic rather than targeted, can limit access to employment, education, or basic services, creating a climate of inequality that profoundly impacts the applicant.

The Federal Court in Sasi v. Canada clarified that officers are not required to find a direct, individualized link between country conditions and the applicant’s circumstances. Instead, they must evaluate how the general conditions would likely affect the applicant, taking into account their personal situation. This ensures a more comprehensive analysis that captures the broader impact of systemic challenges.

Adverse conditions are not limited to conflict or discrimination. Economic instability, lack of social infrastructure, or environmental crises such as natural disasters can also create significant hardships. For example, applicants returning to areas devastated by floods or earthquakes may struggle to access basic resources or rebuild their lives.

When assessing claims related to adverse country conditions, decision-makers must balance these challenges with the availability of redress or relocation. While it may be argued that an applicant could avoid hardship by moving to another part of their home country, this is not always feasible. The existence of alternative options does not automatically negate the applicant’s claims, especially if those options are unrealistic or insufficient to address the hardship.

Applicants supporting their claims typically provide detailed evidence, such as reports from NGOs, government publications, or media articles, to illustrate the conditions in their home country. Additionally, personal testimonies or expert opinions may help contextualize the applicant’s experience within the broader framework of country conditions.

By examining these factors holistically, officers can better understand the cumulative impact of removal on an applicant, ensuring that their decision reflects both the broader context and the applicant’s unique challenges.

Family Ties and the Consequences of Separation

Family ties play a fundamental role in humanitarian and compassionate (H&C) applications, particularly when removal would disrupt family unity. The emotional, psychological, and practical consequences of separating an applicant from their family members in Canada are critical considerations, often intertwined with other factors such as the best interests of children and establishment in Canada.

Family ties are not only about proximity but also about the depth and significance of the relationships involved. For instance, an applicant who provides care for an elderly parent, supports a spouse emotionally or financially, or is a primary caregiver for young children demonstrates connections that extend beyond mere presence.

The consequences of separation can be far-reaching. Beyond the immediate emotional toll, removal can strain family dynamics, disrupt caregiving arrangements, and create significant practical hardships. For instance, a parent’s removal may leave children in a vulnerable position, both emotionally and logistically, particularly if alternative caregiving options are limited or inadequate.

In cases where separation affects children, the best interests of the child (BIOC) principle amplifies the weight of family ties. The Supreme Court in Kanthasamy v. Canada emphasized that children’s interests must be evaluated independently and given significant weight in the overall assessment. When a parent’s presence is central to a child’s emotional stability or development, removal may have disproportionate consequences that warrant relief.

Assessing the Impact of Separation from the Family

The impact of family separation is not limited to biological or dependent relationships. Emotional bonds with extended family, such as siblings, grandparents, or even close friends considered family, may also carry significant weight. Courts have recognized that the concept of “family” is fluid and culturally specific, requiring officers to assess each case in its unique context.

For applicants with family members abroad, the analysis may shift slightly. While the focus in such cases is often on the hardship the applicant would face if removed, decision-makers must still consider how the applicant’s removal would affect family members left in Canada. For instance, if the applicant provides critical emotional or financial support to family members in Canada, this role must be weighed alongside other factors in the decision.

To support family-related claims, applicants must provide evidence that illustrates both the strength of their relationships and the potential impact of separation. This may include:

• Affidavits or letters from family members detailing the relationship and the role the applicant plays in the family unit.

• Evidence of caregiving responsibilities, such as proof of financial support, medical documentation showing the applicant’s involvement in care, or testimonies from professionals like social workers.

• Photographs, emails, or other documentation that demonstrates the closeness of the relationship.

Courts have consistently emphasized that the analysis of family ties should extend beyond surface-level considerations. Family ties must be analyzed holistically in conjunction with other H&C factors. For example, family separation may exacerbate the hardship caused by adverse country conditions or health challenges. Similarly, an applicant’s strong establishment in Canada, combined with deep family connections, can reinforce the argument for relief under s.25(1) of the IRPA.

A Holistic Approach: No Single Factor is Determinative

In humanitarian and compassionate (H&C) applications, no single factor can determine the outcome. Immigration officers are not following a checklist to see which criteria are met or unmet. Instead, they are tasked with assessing the application as a whole, considering all relevant circumstances and how they interact. This holistic approach aligns with the guiding principle established in the Chirwa test:

Would a reasonable, fair-minded Canadian, aware of the applicant’s circumstances, find it acceptable to deny relief?

The Chirwa test emphasizes fairness and equity over rigid rules, encouraging officers to approach applications with sensitivity and a broader perspective. Rather than isolating individual factors like hardship, establishment, or family ties, decision-makers must ask how these elements collectively shape the applicant’s circumstances and whether denying relief would lead to undue hardship or injustice.

The Interconnectedness of Factors

In practice, the facts presented in H&C applications rarely fit neatly into isolated categories. Factors such as hardship, family ties, or adverse country conditions often overlap, creating a narrative that is greater than the sum of its parts. For instance:

• Family and Health: An applicant who is the sole caregiver for a child with special needs may raise considerations related to both the child’s best interests and the applicant’s role in providing emotional and physical support.

• Country Conditions and Health: A person living with a chronic illness may face compounded challenges if removed to a country with inadequate healthcare, intertwining health considerations with the impact of adverse country conditions.

• Establishment and Family Separation: A long-term resident deeply rooted in Canadian society who provides critical financial or emotional support to family members in Canada demonstrates how establishment and family ties reinforce one another.

These interconnected factors highlight the importance of a comprehensive evaluation. It is not enough to examine each factor in isolation; officers must view them as part of a cohesive narrative. This ensures that the analysis captures the full scope of the applicant’s circumstances and avoids unfairly minimizing the significance of any single aspect.

Unique or Exceptional Circumstances: Weaving the Narrative

At the heart of many H&C applications are unique or exceptional circumstances—situations that fall outside the traditional framework but demand relief in the name of fairness and compassion. These circumstances often act as the unifying thread that ties together the various factors in an application, demonstrating why the case, as a whole, warrants an exemption under s.25(1) of the Immigration and Refugee Protection Act (IRPA).

Exceptional circumstances are deliberately broad and can encompass a range of situations, such as:

• Traumatic experiences, such as surviving domestic violence or severe injury in Canada;

• Unforeseen barriers to returning to the country of origin, such as political upheaval or the loss of support networks;

• Extraordinary contributions to Canadian society, which, when paired with other factors, highlight the applicant’s deep connection to the community.

For example, an applicant caring for an elderly parent while managing their own chronic illness may demonstrate how unique circumstances amplify the hardship and disruption that removal would cause. The role of exceptional circumstances is to bring together the applicant’s story, illustrating how individual factors interact to create a compelling case for relief.

The Role of an Immigration Lawyer: A Collaborative Process

The success of a humanitarian and compassionate (H&C) application depends on how well the applicant’s story is presented to align with the principles of fairness and equity outlined in the Chirwa test. Achieving this requires a close and collaborative partnership between the applicant and their lawyer or advocate. Together, they must craft a comprehensive submission that effectively conveys the interconnectedness of factors such as hardship, family ties, establishment, and country conditions

This collaboration begins with the applicant’s willingness to provide complete and detailed information about their circumstances. No fact is too small; the details of their life in Canada, their family connections, their experiences in their home country, and their health conditions all play a role in shaping the narrative. The lawyer’s role is to review this information, identify relevant evidence, and determine how best to present it in a way that addresses the officer’s holistic assessment.