Operational Bulletin 021 – June 22, 2006

Interim Instructions to CIC officers concerning the examination of H&C applications (in Canada)

1. Policy Change:

CIC officers assessing applications for humanitarian and compassionate (H&C) consideration must consider exempting any applicable criteria or obligation of the Immigration and Refugee Protection Act, including inadmissibilities, when the foreign national has specifically requested such an exemption, or it is clear from the material that the foreign national is seeking such an exemption.

Officers may grant an exemption from an inadmissibility if:

• they are of the opinion that it is justified by humanitarian and compassionate considerations; and
• they have the delegated authority to grant the exemption.

These changes affect only those H&C applications containing a request for an exemption due to an inadmissibility; applications for H&C consideration that do not contain such requests may be assessed in the usual manner.

2. Relevant legislation and authorities:

IRPA subsections 11(1), 21(1) and 25(1); IRPR section 233 and subsection 207(d).

3. Procedures:

CIC officers will continue to assess H&C applications to determine if exemptions from certain class requirements/selection criteria are justified on H&C grounds. However, if an applicant has requested an exemption because of an inadmissibility, CIC officers are now required to weigh any H&C considerations against the inadmissibility to determine if the granting of an exemption is, or might be, justified.

It is important to note that, for inadmissibilities, the exemption being granted is from the obligation to be “satisfied that the foreign national is not inadmissible and meets the requirements of [the] Act.”-- Subsection A11(1). Therefore, by granting the exemption, the officer is not removing the inadmissibility; rather, the exemption allows the applicant to continue to be processed towards permanent residence, without having to satisfy the officer that he or she is not inadmissible.

If the officer is of the opinion that an exemption is justified, and he or she has the delegated authority to do so, the exemption may be granted in order that the applicant may proceed with the application for permanent residence.

If the officer is of the opinion that the H&C considerations might justify an exemption, but he or she does not have the delegated authority to grant the exemption, the case should be forwarded to the Director of Case Review, NHQ, for assessment.

4. Cases that require reassessment:

With respect to cases that have been sent back to CIC officers for reassessment following a court decision or a consent order, officers should reassess the case (even if the initial H&C decision was positive) using the procedures described in these interim instructions.

5. Delegated authorities:

Authority to assess
CIC Officers have the authority to assess all H&C applications, including when the applicant is inadmissible on any grounds, such as security, violation of human or international rights, organized crime, health, etc.

Authority to exempt
Officers have the delegated authority to grant an exemption from any criteria or obligation of the Act and Regulations, including where the applicant is inadmissible on any of the following grounds:

• Criminality (A36(2))
• Financial reasons (A39)
• Misrepresentation (A40)
• Non-compliance with the Act (A41)
• Inadmissible family member (A42)

No authority to exempt
Officers do not have the delegated authority to grant exemptions with respect to the following inadmissibilities:

• Security (A34)
• Human and international rights violations (A35)
• Organized criminality (A37)
• Serious criminality (A36(1))
• Health (A38)

In cases involving inadmissibilities A34, A35, A37, A36(1) and A38, and where, in the officer’s initial assessment, the H&C considerations might justify an exemption, the entire case should be forwarded to the Director of Case Review at NHQ. The officer should not provide a formal assessment or opinion, but should make a note in FOSS that the case is being sent to the delegated decision-maker at NHQ.

If the decision-maker at NHQ determines that there are sufficient H&C grounds and grants the exemption, a stay of removal is in place (R233) and the applicant can apply for a work permit (R207) and a study permit (R215).

Authority to render a negative decision
Officers have the delegated authority to render a negative decision on any application, regardless of the inadmissibility, if they are of the opinion that there are insufficient H&C grounds. Thus, if the officer has reason to believe that a serious inadmissibility exists, including those involving security (A34), human and international rights violations (A35), and organized criminality (A37), officers should refuse the application if they are of the opinion that insufficient H&C grounds exist.

National security cases
National security cases are usually complex and often require the input of an intelligence analyst. For functional direction and guidance in applying the inadmissibility provisions of IRPA, consult ENF 1 Inadmissibility. Department policy states that the CIC officer must contact the National Security Division Intelligence Directorate, CBSA. An analyst will be assigned as a resource person to assist the officer in order to determine whether the foreign national is inadmissible on security grounds.

6. Granting exemptions on one’s own initiative

In some cases, an officer may consider it appropriate to grant an exemption on his or her own initiative due to, for example, a change in the applicant’s circumstances. These types of situations may involve new inadmissibilities that emerge subsequent to a positive H&C assessment, but prior to the applicant being granted permanent residence.

For example:

• The applicant may develop a medical condition after a positive Step 1 assessment, or it is evident to the officer that the applicant was unaware of an existing medical condition or did not realize it made them inadmissible. Officers may consider the new circumstances and, if they believe it is appropriate, send the application to the Director, Case Review for assessment.
• A member of the applicant’s family becomes inadmissible subsequent to the initial positive assessment; however, in the officer’s opinion, the offence is not significant enough to outweigh the initial H&C assessment. The officer may wish to exercise his or her discretion and grant an exemption, if he or she is of the opinion that an exemption is warranted by the existing H&C grounds.

Where an officer decides to put forward a case for consideration of H&C in the absence of a specific request from the applicant, the applicant should be informed that H&C is being considered and should be provided with an opportunity to present his or her own reasons for H&C consideration. This is procedurally fair and ensures that the decision-maker has all the information necessary before making a decision.

If an applicant provides updated or additional submissions, for example, in response to a letter informing the applicant that he or she may be medically inadmissible, and if, in these submissions, the applicant requests an exemption on H&C grounds from the new or newly discovered inadmissibility, then the delegated authority should consider the request.

7. Temporary resident permits (TRPs):

While the above-mentioned guidelines describe how exemptions for inadmissibilities may be granted under H&C, other means of overcoming inadmissibility, such as the criminal rehabilitation provision and in-Canada pardons, are still available. There will also be situations where the granting of a TRP may be appropriate even when an H&C application has not been applied for or has been refused. For instance:

• If a member of the applicant’s family, who is included in the application for permanent residence, cannot be granted permanent residence along with his or her family members due to an inadmissibility, the delegated authority may decide to issue a TRP to that individual, while granting permanent residence to the principal applicant and other family members. (The principal applicant is able to overcome the inadmissibility under A42, inadmissible family member, based on H&C considerations.)
• The officer does not believe that there are sufficient grounds to grant an exemption under H&C, but feels the applicant should be allowed to remain in Canada temporarily, perhaps to apply for a pardon for a criminal conviction. A TRP may be issued in order to allow the individual to stay in Canada.
• If an application has to be forwarded to another delegated authority for decision on the request for H&C, and the applicant is currently without status, a TRP might be issued until a decision is made on the H&C application.

Date: June 7, 2006