Canadian Refugee Procedure/25-26 - Humanitarian and compassionate considerations — request of foreign national

IRPA Sections 25-26

Sections 25-26 of the Immigration and Refugee Protection Act read:

Humanitarian and compassionate considerations — request of foreign national
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Restriction — designated foreign national
(1.01) A designated foreign national may not make a request under subsection (1)
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.

Suspension of request
(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.

Refusal to consider request
(1.03) The Minister may refuse to consider a request under subsection (1) if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).

Payment of fees
(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

Exceptions
(1.2) The Minister may not examine the request if
(a) the foreign national has already made such a request and the request is pending;
(a.1) the request is for an exemption from any of the criteria or obligations of Division 0.1;
(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division;
(b.1) the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending; or
(c) subject to subsection (1.21), less than 12 months have passed since
(i) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or
(ii) in any other case, the latest of
(A) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,
(B) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and
(C) the day on which the Federal Court refused the foreign national’s application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection.

Exception to paragraph (1.2)(c)
(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national
(a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or
(b) whose removal would have an adverse effect on the best interests of a child directly affected.

Non-application of certain factors
(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

Provincial criteria
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Humanitarian and compassionate considerations — Minister’s own initiative
25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35, 35.1 or 37 — or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

Provincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Public policy considerations
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.

Exemption
(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

Provincial criteria
(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Conditions
(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.

Regulations
26 (1) The regulations may provide for any matter relating to the application of sections 18 to 25.2, and may include provisions respecting
(a) entering, remaining in and re-entering Canada;
(b) permanent resident status or temporary resident status, including acquisition of that status;
(b.1) declarations referred to in subsection 22.1(1);
(c) the circumstances in which all or part of the considerations referred to in section 24 may be taken into account;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
(d.1) undertakings that may or must be given in respect of requests made under subsection 25(1) or undertakings referred to in subsection 25.2(4), and penalties for failure to comply with undertakings;
(d.2) the determination of eligibility referred to in subsection 25.2(4); and
(e) deposits or guarantees of the performance of obligations under this Act that are to be given to the Minister.

Exemptions
(2) The regulations may exempt persons or categories of persons from the application of section 18 and prescribe the conditions under which the exemption applies.

Humanitarian and compassionate considerations

The purpose of humanitarian and compassionate discretion is to “mitigate the rigidity of the law in an appropriate case”. This provision is described as “a flexible and responsive exception to the ordinary operation of the Act and its regulations”. As such, there is no limited set of factors that warrant relief. However, humanitarian and compassionate exemptions are exceptional and constitute a discretionary remedy. Relief under section 25 of the IRPA is intended to be exceptional and not an alternative immigration stream or appeal mechanism.

Non-application of factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1)

Section 25(1.3) of the Act is entitled "Non-application of certain factors". It states that in examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national. In practice, there will frequently be considerable overlap between the section 96 and 97 factors (which may not be considered), and hardship factors (which must be considered). Section 25(1.3) does not prevent the admission into evidence of facts adduced in proceedings under ss.96 and 97. The role of the officer making a determination under s. 25(1) is to ask whether this evidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96 or s. 97 claim, nonetheless suggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigration and Refugee Protection Act. Section 25(1.3) of the IRPA and underscored that it was not meant to alter the H&C assessment, but to ensure that evidence considered in that assessment was viewed through the prism of a hardship analysis, rather than a repetition of the refugee determination analysis.

Section 25(1.2)(b.1): The Minister may not examine a request if the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending

Section 25(1.2)(b.1) of the Act provides that the Minister may not examine a request for humanitarian and compassionate relief if the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending. In other words, if a person has been served with their pre-removal risk assessment paperwork after their claim was found ineligible, the Minister may not examine a humanitarian and compassionate application by that person.