Humanitarian and Compassionate Applications: A Critical Look at Canadian Decision-Makers’ Assessment of Claims from “Vulnerable” Applicants

Abstract

For many people who have made Canada their home but have uncertain legal status and are ineligible to apply for permanent residence through other channels, the Humanitarian and Compassionate (H&C) application is the only available pathway to permanent residence and stability in Canada. Applications for permanent residence on H&C grounds have become a key component of Canada’s immigration system and yet this pathway remains under-researched. Drawing upon extensive desk research and the preliminary analysis of interview data, this article addresses this gap in the scholarship by offering a critical analysis of the H&C program. In it, we begin by discussing the specific challenges that this highly discretionary decision-making process poses for vulnerable applicants and suggest areas for improvement. We then focus on H&C applications and decisions that directly impact children and explain why a change in the Canadian application of the best interests of the child principle is required. Finally, we consider two recent trends in H&C cases: the sharp increase in the number of applications and the increasingly high rates of refusal. Throughout this analysis, we highlight the negative repercussions the current system has on the most vulnerable categories of migrants and the need to better understand these phenomena.

1. Introduction

Around the world, Canada has earned a reputation as a welcoming country for immigrants and refugees. In 2019, it emerged as the world leader in the resettlement of refugees, ranking first among 26 countries (UNHCR 2021), and that same year, the Organization for Economic Co-operation and Development (OECD) noted that Canada has the most comprehensive and elaborate migration system in the OECD (OECD 2019). In 2019, Canada granted permanent residence to 341,180 individuals, including 48,530 refugees and protected persons (IRCC 2020a). There were also 5075 individuals who received a positive assessment regarding their application for permanent residence on humanitarian and compassionate (H&C) grounds (Migrant Rights Network 2021). Although this category accounted for less than 1.5% of all permanent residents in 2019, over time, it has become a key component of Canada’s immigration system since it allows the admission of vulnerable claimants who would not otherwise be accepted under any other immigration program.1

This article offers a critical analysis of Canadian immigration decisions based on H&C grounds. It is built upon findings from a Canadian study conducted in the context of an international project (the VULNER project) that seeks to investigate how the “vulnerabilities” of migrants are defined in government documents, how they are assessed by decision-makers, and how the legal frameworks and the implementation practices concretely affect vulnerabilities as experienced by the migrants themselves.2 Those findings are primarily based on desk research data collected during the first phase of the project (April–December 2020). We also use data from interviews conducted with five civil servants from Immigration, Refugees and Citizenship Canada (IRCC) during the second phase of the project (March 2021–June 2022).3 These five civil servants are all at a senior level or higher and have solid experience (at least five years) processing H&C applications as final decision makers.4 At the time of writing this article, interviews with civil servants had been completed while interviews with migrants and “on the ground” practitioners (i.e., lawyers, social workers and NGO workers) were ongoing. We recognize that the experiences and views of migrants and practitioners are key to fully understanding the strengths and weaknesses of humanitarian and compassionate consideration. Such insights will be covered in future publications. We also recognize that immigration officers regularly making decisions on H&C applications may not be best positioned to elaborate upon the more systemic changes needed to improve the H&C program. However, immigration officer interviews are used here to complement desk research content and to bring, when relevant, their unique voice and knowledge into the conversation, thus offering a more nuanced understanding of this complex and under-researched topic.

In what follows, we present and analyze our research findings pertaining to H&C claims, which are strongly connected to the specific focus of our research project (migrant vulnerabilities). While we do acknowledge that the problems with H&C consideration extend far beyond the specific question of vulnerability, our objective here is not to address all issues relating to H&C consideration, but rather to seek to contribute to the limited literature in this field by exploring more deeply some of the key connections between vulnerability and H&C. We start by explaining what humanitarian and compassionate consideration is, why it matters and how an H&C application is assessed. Specific attention is paid to the unique purpose of H&C relief in Canada, that is, mitigating the rigidity of the law by introducing a “safety net” for vulnerable persons, and to the specific challenges that come with a highly discretionary decision-making process in applications such as H&Cs. We then make suggestions for improving the overall assessment of applications coming from “vulnerable migrants”, notably that administrative guidelines issued by IRCC should acknowledge the specific challenges associated with vulnerability (Part 2). We continue by focusing more closely on H&C applications in which children are directly affected by the decision. We explain the “weight” accorded to the “best interests of the child” in the context of an H&C decision in Canada and we argue that it is highly problematic that the best interests of the child are seen as only one of the many important factors that the decision maker needs to consider when making an H&C decision (i.e., an important but not prevailing factor). We then suggest improvements in this area (Part 3). Finally, we discuss two recent trends in H&C considerations: the sharp increase in the number of applications and increasingly higher refusal rates. We illustrate how these trends are worrying, given the devastating impact of the COVID-19 pandemic on the most vulnerable categories of migrants (Part 4).

2. Processing and Assessment of Humanitarian and Compassionate Considerations and Impacts on Rejected Applicants

Under s. 25 and s. 25.1 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), foreign nationals who have lived in Canada with an uncertain status but who have still made Canada their home may obtain permanent resident status if there are sufficient humanitarian and compassionate considerations, including the best interests of any child directly affected, to justify an exemption from any requirement set out in the IRPA.5 Thus, H&C is “an exceptional measure” allowing the approval of “deserving cases not covered by the legislation” (IRCC 2017c).

H&C relief is specifically designed for individuals who are already in Canada, who would not otherwise qualify under any immigration program and who cannot fulfill the requirement that an application be made outside Canada.6 There are, however, some restrictions on examination of H&C applications (ineligibility criteria). For instance, the H&C applications of foreign nationals found criminally inadmissible on grounds of (1) “security” (i.e., espionage, subversion, terrorism, danger to the security of Canada, violence that would endanger Canadians and membership in an organization committing espionage, subversion, or terrorism: s. 34 of the IRPA), (2) “human and international rights violations” (i.e., acts considered War Crimes or Crimes Against Humanity; s. 35), and (3) “organized criminality” (s. 37) will in principle not be examined.7 Moreover, since the coming into force of Bill C-31 in December 2012 (Protecting Canada’s Immigration System Act, S.C. 2012, c. 17), refugee claimants’ access to H&C applications has been severely restricted. Individuals who have made a refugee claim may not apply for H&C consideration if less than 12 months have passed since the date of the last negative decision of the Immigration and Refugee Board (IRB) on their refugee determination or since the date of the last negative decision of the Federal Court concerning their application for leave or judicial review of the IRB decision (IRPA, s. 25(1.2)(c)). This 12 month bar does not apply if the persons who are subject to removal would face a risk to their life on the basis that their country of origin is unable to provide adequate medical care or if the “removal would have an adverse effect on the best interests of a child directly affected” (IRPA, s. 25(1.21)).8

Once it has been determined that an applicant is eligible to have an application assessed, the H&C claim is processed in two stages. First, a humanitarian and compassionate assessment of the requested exemption(s) is completed. The immigration officer conducts an assessment of the application to determine whether H&C considerations justify the granting of the requested exemption(s) from the requirements of the IRPA or of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) (Stage 1) (IRCC 2014f). A positive Stage 1 assessment puts into effect a stay of removal (s. 233 of the IRPR) and allows the applicant to request a work permit, a study permit, or both (s. 207(d) and s. 215(g) of the IRPR) (IRCC 2014c). Second, a final decision is made on the permanent resident application (Stage 2) (IRCC 2014f).

Since the main objective of an H&C application is to “mitigate the rigidity of the law in an appropriate case” (Kanthasamy 2015, SCC, para. 19) and to provide immigration officers with the flexibility to grant permanent residence to foreign nationals who would otherwise not qualify in any immigration class, a high level of discretion is key in this process. In fact, according to the civil servants interviewed for this project, it is the program in Canada that provides immigration officers making decisions on migrants’ applications with the highest discretionary power. For instance, one interviewee told us: “It’s a highly discretionary process, one that is very specific to the case […]. You can never predict the outcome because it all depends on the facts of the case” (Immigration Officer S). Another interviewee noted: “The discretion is just so different from officer to officer […]. I can look at it with my eyes and approve; another person can look at it with their eyes and refuse” (Immigration Officer V).

The need for flexibility in the immigration regime was recognized by Canadian officials as early as 1967 (Kanthasamy 2015, SCC, para. 12). In the House of Commons, the Parliamentary Secretary for the Minister of Manpower and Immigration stated that immigration rules “necessarily are general”, as “[t]hey cannot precisely accommodate all the variety of individual circumstances”, and that inevitably “[t]here will sometimes be humanitarian and compassionate reasons for admitting people who, under the general rules, are inadmissible” (House of Commons 1967, p. 13267). H&C consideration is thus conceived as a unique “safety net” for vulnerable migrants falling through the cracks of the immigration system. Most of the time, H&C is in fact the only avenue available for foreign nationals with uncertain legal status (such as undocumented migrants) to obtain permanent residence in Canada (Migrant Rights Network 2021; CCR 2021; Goldring and Landolt 2022).9 For example, under s. 230 of the IRPR, the Minister of Public Safety and Emergency Preparedness may impose a Temporary Suspension of Removals (TSR) to countries where there is a generalized risk affecting the entire civilian population (armed conflict, environmental disaster, etc.). Individuals who are subject to a TSR and who are already in Canada may apply for permanent residence on H&C grounds.10 As stated by the H&C Program Delivery Instructions, H&C is also a particularly viable option for failed refugee claimants, that is, individuals who were denied refugee protection by the IRB because they were unable to prove a personal risk of persecution (IRCC 2017a).11

In an H&C application, individuals may present any facts and circumstances that they consider to be sufficiently compelling to warrant H&C relief, such as the current conditions in their country of origin, their current establishment in Canada, their family ties, their physical or mental health concerns, or the best interests of any children directly affected by the H&C decision (IRCC 2016c).12 It is also worth noting that IRCC officers are not limited to assessing factors submitted by applicants and can consider and weigh any information before them including, for example, the applicant’s immigration history or criminal record (ibid). Thus, what warrants relief will vary greatly depending on the facts and context of each case.13 The test to be met in every case is the following: is the requested exemption justified on a humanitarian and compassionate basis?14 In Kanthasamy (2015), the Supreme Court of Canada clarified how the H&C assessment should be conducted, in other words, how to consider whether relief is justified by humanitarian and compassionate considerations. The Court held that a segmented approach to assessing humanitarian applications was inappropriate and stated that immigration officers reviewing H&C applications “must substantively consider and weigh all the relevant facts and factors before them” (para. 25). In sum, there must be a “global assessment” of all relevant considerations put forward by the applicant rather than an analysis “in isolation”, which means that each H&C factor should not be separately or individually considered but weighed cumulatively (para. 28).

The fact that IRCC officers must proceed to a global assessment of all factors presented before them does not mean that they must consider all factors on an equal footing. In fact, the weight given to the different factors is at the officer’s entire discretion, which leads some observers to conclude that the criteria for assessment in an H&C application are “highly malleable” (Dauvergne 2013, pp. 706–7; see also CCR 2006; CCR 2021). This malleability has important consequences for “vulnerable” applicants. On the one hand, it is a good thing that the H&C program allows for the recognition of different types of vulnerabilities among applicants since, as we have shown elsewhere (Kaga et al. 2021), the concept of “vulnerability” in Canadian law and policy is difficult to grasp and define.15 Indeed, as one immigration officer noted, “We really […] acknowledge vulnerability of all kinds in how we interpret section 25(1) of the Act” (Immigration Officer R). On the other hand, and not surprisingly, our interviews with IRCC civil servants illustrate how these officers have very different views (and understandings) of who is a “vulnerable” migrant.16 Even though the sole recognition by immigration officers that an applicant is “vulnerable” will not—in and of itself—lead to a positive decision,17 the large freedom that immigration officers have in assessing these applications, and more particularly in prioritizing one “vulnerability factor” over the other, is likely to influence the final outcome of the decision and to lead to important variations in decisions for a same application.

To put it differently, the wide margin of discretion that immigration officers have in assessing which vulnerability should prevail over the other can create space for potentially subjective and unpredictable decisions. As one interviewee told us, “At the beginning, as a decision-maker, I struggled a lot with that, because I could understand that another decision-maker could take a different decision on a specific set of factors, but I could not understand why I, with the same view of things, could one day approve, one day refuse a similar case” (Immigration Officer S). This variability is problematic for applicants given the time, effort and money involved in the preparation of an H&C application. Indeed, applying for permanent residence on H&C grounds is a costly and complicated process, which is usually seen as necessitating the help of a lawyer (even though not every applicant can afford the services of legal counsel).18 It is also a “last resort” measure that comes with its own risks for some of the most vulnerable applicants, including “women fleeing gender violence, homeless people, and other undocumented families”, since failed applicants may be deported from Canada to dangerous, turbulent environments, with very negative consequences for them (Migrant Rights Network 2021).19 Finally, it is worth noting here that recourses after a negative decision are extremely limited. In fact, applicants may submit a request for reconsideration of their negative decision, but while in practice an officer has discretion to reconsider a final H&C decision, such reconsiderations are undertaken only “in exceptional cases” (IRCC 2014h). The only other recourse for the applicant is to seek judicial review of the decision at the Federal Court (IRPA, s. 72(1)), but judicial review is a complex and exhaustive process with little chance of success (Rehaag 2012; Nakache and Blanchard 2014; Purkey 2022).20 For all these reasons, it is particularly essential that H&C decisions are as consistent as possible.

One way to ensure more consistency in H&C decisions would be to make an explicit reference to “vulnerable applicants” in IRCC Program Delivery Instructions (currently, the instructions do not refer to vulnerable applicants: see IRCC 2017c), and to provide immigration officers with specific tools to recognize and address vulnerabilities in their assessment of H&C applications. As highlighted by the Supreme Court in Baker (1999, para. 72), IRCC operational instructions and guidelines are a “useful indicator of what constitutes a reasonable interpretation of the power” conferred by s. 25 of the IRPA, and as such, “are of great assistance to the Court in determining whether the reasons of [the H&C officer] are supportable”.21 Yet, it has been repeatedly stated in the case law that when statutory discretion is given, it cannot be unduly limited by policy guidelines (Régimbald 2016; see also IRCC 2016a). As Justice Ahmed noted recently in Kaur (2019, FC, par. 32), “it is trite law that administrative guidelines are not binding and cannot be applied in a manner that unduly fetters a decision maker’s discretion, unless they constitute delegated legislation”. This principle was stated in many decisions before, including Singh (2014, FC, para. 12), in which Justice Roy insisted that “[g]uidelines can only be of limited use because they cannot fetter the discretion given by Parliament”, and Hawthorne (2002, FCA, para. 9), in which Justice Décary emphasized that guidelines should not be interpreted as “hard and fast rules” because they simply are “an attempt to provide guidance to decision makers when they exercise their discretion”.22 Nonetheless, soft law instruments such as guidelines are “situated at this juncture between legal rule making and discretionary decision making”, and thus play an important role as they “validly influence a decision-maker’s conduct” (Sossin and van Wiltenburg 2021, p. 630). Scholarly works also consider administrative guidelines as one of the key means of ensuring that consistent and fair decisions are made (see, e.g., Houle 2008; Houle and Sossin 2006; Filion 1979).

In this context, IRCC should not only make a specific reference to “vulnerable” migrants in its guidelines, but also promote among its employees a more consistent use of such guidelines.23 This was recently reminded by the Supreme Court of Canada in Vavilov (2019, para. 129), where the Court noted that “administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions”, and more importantly, that “[t]hose affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker”. While we recognize that conducting an H&C assessment is a complex task and that the program operates on a case-by-case basis, coherence and consistency are paramount for applicants and provide the ultimate safeguard against potentially arbitrary decisions. Interestingly, most civil servants interviewed for this project also indicated that they currently use guidelines from a different institution (the Immigration and Refugee Board) to help them make their H&C decision when a “vulnerable” claimant is involved.24 However, as one interviewee noted, “at the end of the day, it’s not directly applicable to IRCC, because the process is not the same as with the IRB” (Immigration Officer T). In the same line, one interviewee noted that more could be done to explain the vulnerabilities to the officers (Immigration Officer S). It is thus fair to conclude that immigration officers would benefit from more guidance provided by IRCC in their specific field of practice—when they render H&C decisions. In line with this change, a common approach at IRCC may be further developed through mandatory training.25

In sum, the flexibility provided by H&C applications allows the Canadian government to address the multiple vulnerabilities of migrants and to provide legal protection to individuals who would otherwise fall through the cracks of the system. However, the highly discretionary decision-making process also creates challenges related to how immigration officers assess and weigh the H&C factors and can lead to important variations in immigration decisions, with real life consequences (such as removal to the country of origin) for the most vulnerable applicants. One way to address this problem would be to add a specific section on “vulnerable migrants” in IRCC Program Delivery Instructions, which should contribute to a better identification and assessment of all key vulnerability factors. Even if these instruments are not perfect and deserve improvements, they are currently the best way to ensure that decisions are fair and consistent for all applicants. Another major issue, to which we now turn, is the weight given to the best interests of the child in H&C decision making.

3. Ensuring That the Best Interests of the Child Prevail in Any Assessment of H&C Applications

In Canada, children have long been recognized as a “vulnerable group”. As highlighted by the Supreme Court of Canada in several of its decisions, the “inherent vulnerability of children” is now well established and has “deep roots in Canadian law” (A.B. 2012, para. 17; M.M. 2015, para. 262). As Justice Martin also recently noted, children are “members of a group made vulnerable by dependency, age, and need” and therefore “merit society’s full protection” (Michel 2020, para. 77). Canadian law is based on the principle of the “best interests of the child”, a key principle derived from the Convention on the Rights of the Child (1989) to which Canada is a party (since December 1991). The concept of the child’s best interests is complex, and it is beyond the scope of this paper to address its many dimensions (for more on this topic, see United Nations 2013). Suffice it to say here that this principle gives children the right to have their best interests assessed and taken into account as a primary consideration in all actions or decisions that concern them, both in the public and private sphere, and that the best interests of the child must be determined on a case-by-case basis, considering the child’s personal context, situation and needs. Thus, courts, administrative authorities at all levels, legislative bodies, as well as private and public entities that provide social services must consider the best interests of the child in all actions concerning children (i.e., acts, conduct, proposals, services, procedures, decisions, and any other measures that concern children directly or indirectly).26 The “best interests of the child” principle has many applications, depending on its context. In what follows, we focus on the “best interests of the child” in the immigration context, and more particularly, in the H&C context.

The IRPA makes specific reference to the best interests of the child in only a handful of provisions, including s. 25.27 Relevant passages of this section read as follows:

25. (1) Subject to subsection (1.2), the Minister must […] 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.

[…]

(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.

H&C decisions are extremely important for children, “as they represent in some circumstances the only provision in the immigration legislation to allow them to reunite or remain with family members, including parents” (CCR et al. 2008, p. 2). Canadian courts have recognized that the “best interests of the child” should be given careful consideration in the exercise of H&C discretion by an IRCC officer. The most important case is the ruling in Baker (1999), where the Supreme Court of Canada noted:

[74] […] Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H&C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) [now s. 25 of the IRPA] judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values.

In Hawthorne (2002), the Federal Court of Appeal addressed the situation of a teenage girl whose mother was being deported from Canada. In overruling the immigration officer’s negative decision on the H&C application, the Court of Appeal stated:

[4] The “best interests of the child” are determined by considering the benefit to the child of the parent’s non-removal from Canada as well as the hardship the child would suffer either from her parent’s removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interest of the child.

It is thus only by carrying out a full and proper “best interests of the child” determination that an immigration officer can really assess where the best interests of the children lie and, consequently, consider both the “benefit” and the “hardship” at stake for any child/children involved in the H&C decision. In Somera Duque (2007), the Federal Court of Appeal also observed:

[32] It is true that the best interests of the child cannot be assessed in a vacuum […] in the context of an H&C application [and] must be assessed in a reasonable manner. Where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. The applicable Minister’s guidelines in this instance […] provide that a child’s emotional, social, cultural and physical welfare should be taken into account.

[33] I find that there is a defect in the process by which the Officer’s conclusions were drawn in respect to the best interests of the child and as a result, the interests of the child were minimized. Consequently, the Officer failed to accord sensitive consideration to the best interests of the child. I am satisfied that this constitutes an unreasonable exercise of discretion and warrants the Court’s intervention.28

Given the importance in Canadian immigration case law of the principle of the best interests of the child, the IRCC has prepared Program Delivery Instructions aimed specifically at providing guidance to immigration officers in this area (“Humanitarian and compassionate assessment: Best interests of a child”: IRCC 2016b). Those guidelines specify how an H&C application should be assessed when the best interests of a child are at stake.29 One passage deserves to be quoted at length:

The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, the best interest of a child is only one of many important factors that the decision maker needs to consider when making an H&C decision that directly affects a child. [emphasis in original]

This passage is consistent with the case law. Indeed, Canadian courts have consistently maintained that the best interests of any child directly affected in immigration decisions is only one of the many important factors in an H&C application. In Baker (1999), for example, the Supreme Court indicated that although decision makers should give “substantial weight” to the best interests of the child, “that is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H&C claim even when children’s interests are given this consideration” (para. 75). Three years later, the Federal Court of Appeal in Legault (2002) specified that the “mere mention” of a child’s best interests is not sufficient, and that such interests must be “examined with care and weighed with other factors” in light of the evidence (para. 13). However, it also emphasized that Baker did not create a presumption that the best interests of children should prevail (ibid). Even when strong evidence has been presented, “an applicant is not entitled to an affirmative result on an H&C application simply because the best interests of a child favour that result” (Kisana 2009, FCA, para. 24). In short, even though Canadian courts have cautioned decision makers to take the best interests of children into account when exercising their discretionary powers in an H&C decision, this consideration is not seen as having necessarily a higher value than other considerations. In other words, the obligation of IRCC officers is limited here to the sufficient consideration, identification, and assessment of the best interests of a child directly affected, as well as to the duty to give them substantial—but not primary—weight in the H&C determination.

The position taken by Canadian courts on the “best interests of the child” (i.e., a substantial but not a primary consideration) is not aligned with Canada’s international obligations, particularly art. 3(1) of the Convention on the Rights of the Child, which specifies that the best interests of the child shall always be a primary consideration. Not surprisingly, this position has been the subject of numerous critiques. For example, as early as 1995, the United Nations Committee on the Rights of the Child wrote about Canada that it “regrets that the principles of non-discrimination, of the best interests of the child and of the respect for the views of the child have not always been given adequate weight by administrative bodies dealing with the situation of refugee or immigrant children” (United Nations 1995, para. 13). In 2007, a Canadian Standing Committee analyzing Canada’s effective implementation of its international obligations also raised a number of concerns regarding the country’s respect for the principle of the best interests of the child. The Standing Senate Committee on Human Rights (2007, p. 137) noted that “the best interests of the child should always be a primary consideration in immigration decisions affecting children”. It is worth remembering here that Canada signed (in May 1990) and ratified (in December 1991) the Convention on the Rights of the Child, and that the IRPA provides that Canadian law “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory” (s. 3(3)(f) of the IRPA). As the Federal Court of Appeal noted in De Guzman (2004):

[75] [T]he words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the IRPA. By providing that the IRPA “is to be” interpreted and applied in a manner that complies with the prescribed instruments, paragraph 3(3)(f), if interpreted literally, makes them determinative of the meaning of the IRPA, in the absence of a clear legislative intent to the contrary.

If we follow the Federal Court of Appeal’s reasoning in De Guzman that a legally binding international human rights instrument to which Canada is signatory is determinative of how the IRPA must be interpreted and applied in the absence of a contrary legislative intention, then the principle of the best interests of the child should be regarded as a primary consideration in any H&C decision affecting children (for more scholarly analysis on this topic, see Aiken and Scott 2000; Collins 2010; Chan and Stone 2016; Pobjoy 2015; see also CCR et al. 2008, p. 18). In other words, when it is demonstrated, on a balance of probabilities, that the children’s best interests militate in favor of a positive H&C, then there should be a presumption that H&C relief be allowed. Immigration officers should not treat any other consideration as inherently more significant than the best interests of the child.

Good decisions are rendered each year by immigration officers who demonstrate genuine sensitivity towards children’s interests, but there are persistent problems in the understanding and application of the best interests of the child in H&C proceedings. One of these problems, which has been the focus of this section, is the appropriate weight to be given to best interests of the child determinations in H&C. As previously discussed, the best interests of the child cannot remain in assessment of H&C applications “a factor amongst others”: they must prevail over all other factors. This means, concretely, that Program Delivery Instructions should be modified to clearly indicate that the bests interests of the child must be a “primary consideration” in H&C decisions. This is not to deny that broader reforms of the system are needed. In fact, we believe that statutory amendments should ultimately be made to the IRPA to align the language of section 25(1) with Canada’s international obligations under the Convention on the Rights of the Child. Moreover, reforms such as ongoing training of H&C officers on best interests of the child determinations and regular monitoring of decision making to ensure that the best interests determination is “done, and done appropriately” should be pursued (CCR et al. 2008, p. 19). Nonetheless, our suggested changes to the Program Delivery Instructions would constitute an important step in the right direction. IRCC officers would also strongly benefit from clearer instructions on how the relevant factors should be assessed, thus resulting in more consistency in decision making.

4. A Worrying Trend: An Increase in Refusal Rates Paralleling an Increase in the Number of H&C Applications

Since the Supreme Court’s decision in Kanthasamy (2015), there has been a notable increase in the number of H&C applications submitted yearly. In 2016, there were approximately 8045 applications on H&C grounds. That number reached 9135 in 2018 and 11,105 in 2020. Complete data for the year 2021 are not available yet, but early figures indicate that it will certainly be a record year, as 8970 applications had been completed in the first quarter of 2021 (Migrant Rights Network 2021; Toronto Star 2021).30 Not surprisingly, this new situation is generating a backlog of H&C claims, as the number of immigration officers does not seem to have increased at the same pace as the number of applications (The Canadian Press 2021).31 In January 2022, the Canadian government estimated its current processing times for H&C cases under review at 20 months, and for applicants who had not applied yet, this time could range from 22 to 36 months (Canada 2022).

Backlogs and longer processing times have negative repercussions for both applicants and immigration officers assessing claims. Most interviewees told us that their workload with regard to H&C applications has substantially increased over the years.32 In particular, one officer noted that the pressure to render fast decisions is impacting how they work. For example, to meet their workload targets within the prescribed timelines, some officers might avoid setting up lengthy interviews with H&C applicants or might decide to prioritize “easier” cases that will not require interviews.33 For applicants, delays also mean greater risk of being removed from Canada while awaiting a decision. Indeed, removal decisions can be deferred on humanitarian and compassionate grounds, but only for applicants whose H&C application has received Stage 1 approval on its merits. Thus, there is no stay of removal for H&C applicants who are under a removal order and who are awaiting a Stage 1 decision: they must leave on or before the date stated on their removal order, unless they apply for—and successfully receive—a stay of removal from the Federal Court (s. 233 of the IRPR; IRCC 2021c; IRCC 2021d; IRCC 2014d).34 This rule is highly problematic, according to the Canadian Bar Association (CBA), given the long waiting times—more than 12 months in many cases—for a Stage 1 determination, and since the IRCC does not always communicate those Stage 1 decisions in a timely manner:

Current practices needlessly subject applicants and their families to the emotional and financial hardship of impending separation […]. Removal steps, deferral requests and stay applications also put an unnecessary strain on the limited resources of the [government] and Federal Court […]. And while people who are removed from Canada before their Stage 1 decision are theoretically allowed to return once it has been granted, there is no guarantee that their return will be authorized. Evidence shows that those who have been removed from Canada are far less likely to get a favourable Stage 1 decision in the first place.

(CBA 2019)

As highlighted by the CBA, the regulations should be amended so that the removal of inadmissible applicants can be deferred until a Stage 1 approval has either been granted or denied. In fact, in other applications—such as a Pre-Removal Risk Assessment (PRRA)35—deferrals of removals are already happening: the applicant benefits from a stay of the removal order (s. 232 of the IRPR). It is thus difficult to see why H&C applicants must endure the risk of being deported during their assessment.

In the last two years, refusal rates for H&C applications have also increased dramatically. Between 2016 and 2019, refusal rates ranged from a low 35% to a high 41%. In 2020, however, that rate reached 57%, and preliminary data for the first quarter of 2021 reveal a refusal rate of 70% (Migrant Rights Network 2021; Toronto Star 2021). This trend is worrying given the devastating impact of the COVID-19 pandemic on many migrants in countries of destination such as Canada. Asylum seekers and refugees, migrant workers in low-skilled occupations and undocumented foreign nationals have traditionally been identified as “vulnerable populations” owing to the longstanding structural barriers and inequalities that they continually face in the country of destination. However, “[t]heir vulnerabilities have become more conspicuous and exacerbated since the advent of the Coronavirus disease of 2019 (COVID-19) pandemic” (Mukumbang 2021, p. 1; see also Guadagno 2020; WHO 2020; McAuliffe and Triandafyllidou 2021, pp. 151–72). As an example, the International Labour Organization (ILO) has illustrated how states’ measures in response to the pandemic, including lockdowns, travel restrictions and border closures, have increased the vulnerability of migrant workers, especially those serving on the front lines of the pandemic who are carrying out essential jobs concentrated in sectors of the economy with high levels of informal or unprotected work (health care, domestic work, construction, transport, services, agriculture and agro-food processing) (ILO 2021).

Canada is no exception in this regard. Since COVID-19 started in this country, research has shown that migrant workers “shoulder a disproportionate burden of economic, social, and health risks on account of their ‘temporary residency status’ in Canada” (Vosko and Spring 2021; see also Haley et al. 2020; Landry et al. 2021). Canadian courts recently recognized this disproportionate burden shared by migrant workers and emphasized that their contribution might warrant relief on a humanitarian and compassionate basis. In Mohammed (2022), which was a judicial review of a decision rendered by the Immigration Appeal Division (IAD) of the IRB regarding the applicant’s failure to comply with the permanent residence requirements under s. 28 of the IRPA, the Federal Court stated that the “moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated”, and that this contribution should have been given “the weight it deserved” by the IAD (par. 43). The Court concluded by underlining that the IAD did not “substantively assess all of the H&C factors through a lens of compassion, as is required by the jurisprudence” (par. 44).36 In Canada, recent research is also calling for the inclusion of international students as a “vulnerable population” due the negative impacts of the COVID-19 on this specific group of migrants, more particularly their heightened social and psychological distress and their increased challenges with respect to mobility and securing employment (Firang 2020; Jenei et al. 2020; Hari et al. 2021; Han et al. 2022).

In sum, it is now well documented that the pandemic has created—or exacerbated—vulnerabilities among different categories of migrants. The surge of temporary migrants requiring an exemption on H&C grounds in the context of the global COVID-19 pandemic is therefore a sad but not surprising reality. What is surprising—and highly concerning—is the sharp increase in refusal rates, for reasons that are far from clear. We can hypothesize that this increase is due to Canada’s immigration targets. In fact, Immigration Officer R referred to the targets as a reason for more refusals and noted: “It’s the circumstances […]. I’m sorry if I sound rather cynical, but that is the reality”. In its 2021–2023 Immigration Levels Plan, the Canadian government planned to admit between 4000 and 6000 permanent residents through the H&C stream yearly, with an official target of 5500 individuals (Canada 2021b). Obviously, considering the major increase in H&C applications in the last two years, the Canadian government would have to exceed its immigration targets for that program if officers were to approve applications at the same rate as they did in the past. The possibility that the increase in refusal rates is the result of an increase in the number of applications is extremely problematic because H&C decisions are supposed to be made independently and on a case-by-case basis, and there is no plausible reason to believe that current applications are less meritorious than in the past. There could be other reasons, but if so, they need to be clearly provided by the Canadian government and closely scrutinized.

In May 2021, the Canadian government opened a one-time pathway to permanent residence for 90,000 “essential” temporary workers and international graduates already in Canada and “who are actively contributing to Canada’s economy”, called the Temporary Resident to Permanent Resident Pathway (IRCC 2021e). The pathway closed in November 2021. To be eligible, workers had to have at least one year of Canadian work experience in a health care profession or another pre-approved essential occupation.37 In June 2021, the Canadian government also implemented an “Agri-food Immigration Pilot”, with a view to addressing the labor needs of the Canadian agri-food sector. The pilot provides a pathway to permanent residence for “experienced, non-seasonal workers in specific industries and occupations”. It will run until May 2023 (IRCC 2021a). Although these programs represent an important effort to address the effects of the ongoing pandemic, they cannot be seen as genuine alternatives to the H&C process. To start with, many “essential” workers have been excluded from this pathway (such as home caregivers or agricultural workers from the Seasonal Agricultural Worker Program). Moreover, these programs come with very specific eligibility requirements. For example, refugee claimants whose applications had been denied and who were awaiting appeal or a PRRA decision, and all undocumented people, were prevented from applying to the Temporary Resident to Permanent Resident Program (IRCC 2021f). Finally, as noted by Isaac and Elrick (2021, p. 858), the revaluation of some individuals seen as “essential” (i.e., migrant workers who “risk” their lives and “limb” for the well-being of the host country) “harbours the potential of producing new grounds for marginalization and exclusion”. Thus, while a door might currently be opening for “essential’ workers”, another door might be closing for those deemed “non-essential”. That is the reason why H&C relief, despite its flaws, remains such a useful and necessary protection status: applications are used precisely to assist in complex circumstances that are unexpected in a person’s life (loss of status in Canada, medical inadmissibility, misrepresentation, etc.).

5. Conclusions

It is estimated that there are currently over 1.6 million temporary migrants living in Canada, including at least half a million undocumented migrants (Toronto Star 2021; Migrant Rights Network 2021). With the H&C application process, Canada has created a pathway to permanent residence for vulnerable applicants who would not otherwise be able to apply under any other immigration program. While recognizing the necessity of the H&C program and its exceptional value, our article has highlighted why improvements are needed, especially regarding the H&C decision-making process.

Our article has discussed how, given the huge freedom that immigration officers have in assessing and weighing H&C factors, this situation can lead to potentially subjective and unpredictable decisions. It has proposed a change to IRCC Program Delivery Instructions to include some specific reference to “vulnerable migrants”, which would allow immigration officers processing H&C applications to better identify—and address—applications introduced by vulnerable applicants. In this article, we have at the same time highlighted why, even though IRCC guidelines are not perfect and clearly deserve improvements, they are currently the best way to ensure that decisions are fair and predictable for all applicants, and thus should be used more consistently. We have also shown that the Canadian application of the best interests of the child principle in H&C proceedings (i.e., as a substantial but not a primary consideration) is not aligned with Canada’s international obligations and is not consistent with recent developments in courts’ use of international human rights law as a tool to inform the contextual approach to statutory interpretation and judicial review. We have argued that the best interests of the child should be considered as a prevailing factor in the global assessment of the relevant H&C factors. Finally, we have highlighted two recent trends regarding H&C applications: an increase in the number of H&C applications, which is not surprising given the COVID-19 pandemic, and a parallel increase in refusal rates, which remains largely unexplained. We have highlighted the negative repercussions for applicants and why further attention should be devoted to understanding the interplay between the sharp increase in H&C applications and in refusal rates.

Of course, given “the profound importance of an H&C decision to those affected” (Baker 1999, SCC, para. 43), more changes to the H&C program should be made with a view to benefiting the most vulnerable applicants. For example, besides making the H&C process less expensive and easier to navigate, it is essential that IRCC provides reasons to applicants as soon as a decision is made (currently, applicants are only provided such reasons “upon request” (IRCC 2014a)). It is also important that IRCC’s reconsideration process be bolstered. Clearly, the list of changes needed does not stop there, and migrant advocates have long insisted for broader systemic reforms to address some of the root problems with H&C (see, e.g., Davis and Waldman 1994; CCR 2006; CCR 2021). Thus, it is our hope that our article will form the basis for further critical examination of this very understudied, and yet increasingly important topic.