by Rekha McNutt
A Humanitarian and Compassionate application is often the only option someone has of remaining in Canada. In recent years, IRCC (Immigration, Refugees and Citizenship Canada) has severely restricted the scope of what can be considered in such applications. The threshold of proof had risen dramatically and was virtually impossible to meet. Officers were applying the hardship test ("unusual and undeserved, or disproportionate hardship") as a means to find ways to deny applications.
In December 2015, the Supreme Court of Canada released a very important decision called Kanthasamy. The Judgement very strongly condemned the use of the hardship test as a means of assessing hardship, and instructed officers to look at all the evidence before them with a humanitarian and compassionate mind.
Happily, IRCC has updated their Program Delivery Instructions (PDIs) to reflect the jurisprudence from Kanthasamy, and eliminated the hardship test altogether:
Update to guidance on humanitarian and compassionate considerationSummaryThe December 2015 decision of the Supreme Court of Canada (SCC) in Kanthasamy v. Canada (Citizenship and Immigration) affects how humanitarian and compassionate (H&C) requests under subsection 25(1) of the Immigration and Refugee Protection Act are assessed. The SCC found, in particular, that the unusual and undeserved or disproportionate hardship test improperly restricts the discretion of decision makers. As a result of the SCC decision,the hardship test is no longer to be used. The instructions regarding H&C assessments have been updated to reflect the Kanthasamy decision.Updated instructions
It remains to be seen how Officers will now interpret this decision and these new PDIs in assessing H&C applications. Here's to hoping that compassion returns to H&Cs once again!