Gregory James
Immigration Law Firm
Your
Future ≈ Your Children's Future
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Applications for Permanent Residence made
inside Canada
- Humanitarian and Compassionate grounds -
Canadian law allows the
immigration
department to make an exception to any immigration rule where there is
a
sufficiently compelling humanitarian and compassionate reason for doing
so.
As a result, applicants typically raise
humanitarian and compassionate factors when they are concerned they
cannot
otherwise qualify for permanent residence.
Very, very few people can
qualify for
permanent residence at an office inside Canada according to the
rules. As a
result, many people inside Canada
(whether legally or illegally) consider applying for permanent
residence on humanitarian and compassionate
grounds.
Successful applications made at immigration
offices inside of Canada
are exceptional. The government of Canada discourages
applications made within Canada
by refusing large numbers of them.
There is no clear
definition of
“humanitarian and compassionate” in the immigration laws, but the
immigration
department itself defines it as hardship that is “excessive”, “undue
and
undeserved”, and “disproportionate”.
Immigration authorities
believe that those
people who apply at visa offices abroad are queuing up to enter Canada
according to the law. They see those who want to apply at immigration
offices
in Canada
as asking for special treatment. So they want to know what
makes the applicant applying inside of Canada special. Why should
the
applicant in Canada
get special treatment? What hardships does the applicant in Canada have that the applicant outside
of Canada
does not
have?
The applicant waiting
outside of Canada
typically
faces separation from Canadian family and loss of economic opportunity
while they
wait for their application to be processed. So these factors are not
normally
seen by immigration authorities as special. Therefore, the applicant
who
relies solely on these factors will normally be refused. The delays and
hardships may be real, but in the mind of the immigration authorities
they are
not "excessive".
The immigration
authorities also consider
whether the hardship is “undue and undeserved”.
If the authorities believe that the applicant put him- or
herself into
the situation of hardship, they will often refuse the application.
For example, consider a
person who remained
in Canada for many
years
illegally and now says that leaving Canada will cause a
hardship by
ending his employment, friendships, community associations and family
connections. The immigration department, more and more often, is saying
“too
bad, you knew you were here illegally and you chose to develop these
ties
anyway. It is your own fault. You created the situation. It is not
‘undeserved
hardship’”.
The bottom line is that
immigration
authorities believe that the "integrity" of Canada’s
immigration system depends
upon applications being made at visa offices abroad. Applications made
at
immigration offices inside of Canada
are seen as “undermining the integrity of the immigration system”. So
even
though the government will consider exceptions to the rule on
humanitarian and
compassionate grounds, it is very strict in doing so, and refuses many
more
cases than it accepts.
An application from
within Canada
on
H&C grounds is very slow. It is currently taking Toronto area
applications over 30 months (two
and a half years!) to be finished. While the application is in process
the
applicant who is in Canada
illegally is not entitled to a work or a student permit, and remains in
Canada
illegally until close to the end of the process. Making an application
does not give any kind of status, and does
not stop the government from deporting someone even if the application
has
not yet been considered. In fact, if the application is brought just
before
deportation, the deportation officials are likely to ignore it
altogether.
Here is a list of the
most common mistakes we
see with such cases: The applicant does not consider other more
appropriate
options. The applicant does not do enough to distinguish his or her
case as
"exceptional". The applicant does not provide proper documentary proof
of the
case. The applicant waits too long to bring the application, such as
waiting
until a refugee claim or other application is refused.
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