Author: Joel Sandaluk
A number of years ago, I represented a client who had been granted refugee protection in Canada over 20 years earlier but who had never acquired his Canadian citizenship. After becoming a permanent resident, he built a successful manufacturing business in the Greater Toronto Area, employing more than 60 people on a full-time basis. He was active in his religious community and, during the COVID-19 pandemic, donated significant quantities of PPE to local churches and hospitals.
Over those same 20 years, however, he had briefly returned to his home country on a handful of occasions to purchase machinery for his Canadian business. When the Canada Border Services Agency became aware of these trips, they initiated a process known as cessation. In the end, he lost his permanent resident status entirely.
Ordinarily, someone this well established in Canada (especially someone dozens of employees depended on for their livelihoods) would be a very good candidate to apply to remain in Canada on humanitarian and compassionate (H&C) grounds. In his case, he couldn’t. A cessation order treats the underlying refugee claim as though it had been refused, which triggered a bar that prevented him from filing an H&C application at the moment he needed to most. His removal order was executed before his humanitarian application could even be decided.
We were ultimately able to win his case and bring him back to Canada before his business collapsed. But the ordeal was a personal and professional nightmare that should never have happened to someone in his position — and it illustrates how easily a good-faith applicant can be caught by a bar they never knew existed.
What Are the Bars to H&C Applications?
Humanitarian and compassionate applications are one of the most valuable tools for securing permanent resident status in Canada for individuals with compelling personal circumstances. But not everyone is eligible to file an application; meeting the H&C eligibility requirements begins with confirming that no bar applies to you in the first place.
You may be barred from filing an H&C application if:
- You already have an outstanding H&C application awaiting a decision; or
- You have an outstanding claim for refugee protection, or your refugee claim was rejected by the Refugee Protection Division, the Refugee Appeal Division, or the Federal Court of Canada within the previous 12 months.
This second restriction is commonly referred to as the “12-month bar” and it comes with a small number of exceptions. The most frequently relied-upon exception applies where a child’s best interests would be directly affected if the removal order were executed. It is important to remember that in order for the Best Interests of the Child (BIOC) exception to apply, the child doesn’t need to be an applicant themselves. It can include a stepchild, grandchild, niece, nephew, or any other minor materially affected by the removal.
A second, narrower exception exists where there is sufficient, credible, and objective evidence that a failed refugee claimant would face a risk to life upon return to their home country. In practice, this exception is difficult to rely on, since a tribunal will only recently have rejected that very risk as part of the refugee decision.
Why Good-Faith Applicants Get Caught Out
In my experience, many people who make good-faith claims for refugee protection are rejected not because their stories weren’t believed, but because the tribunal found that the risk they feared simply didn’t rise to the legal threshold of persecution. In the absence of that level of risk, an applicant may still face significant hardship, often more than enough to support a humanitarian and compassionate application. But being caught by the 12-month bar means they must wait a full year before that application can even be submitted, and during that year, a removal order may be executed.
The result is an applicant with a viable case will never get the chance to have it heard.
What Applicants Should Check Before Applying
Anyone considering a claim for refugee protection in Canada should first think carefully about whether that process is actually the strongest path for their circumstances. Claiming refugee protection comes with real advantages (including a work permit and a temporary stay against removal) but pursuing that route when it isn’t the best fit for the actual risk you face can also close the door on an H&C application that may have served you better. Before taking any action, it’s worth stepping back and taking a clear-eyed look at your full circumstances, not just the most immediately available option.
It’s equally important to consider, in advance, whether you would qualify for one of the exceptions to the 12-month bar should a humanitarian application ever become necessary. Getting advice early, not just on the strength of a potential H&C application, but on which exceptions might realistically apply, including any children whose interests could be engaged, may be the difference in ensuring you pursue the best course of action from the outset, rather than discovering too late what you should have done.
How Mamann Sandaluk LLP Can Help
Bars to humanitarian and compassionate applications are easy to miss until after they’ve already cost someone their case. If you’re considering making a refugee claim, have a pending or refused claim, or are unsure whether a bar could apply to your situation, the time to find out is before you file, not after. Our team regularly advises clients on H&C application requirements, eligibility exceptions, and how to sequence immigration applications to avoid exactly this kind of outcome.
Book a consultation with Mamann Sandaluk LLP to review your eligibility for a humanitarian and compassionate application before you take your next step.
FAQ
What are the H&C bars?
The H&C bars are restrictions that prevent certain individuals from filing a humanitarian and compassionate application, including having an outstanding H&C application already under review, or having an outstanding or recently refused refugee claim.
Can I apply for H&C right after a refusal of another application?
If your refugee claim was refused by the Refugee Protection Division, Refugee Appeal Division, or Federal Court within the past 12 months, you’re generally subject to the 12-month bar and cannot file an H&C application until it expires, unless an exception applies.
Does the H&C bar apply to everyone?
No. There are exceptions, most commonly where a child’s best interests would be directly affected by a removal, or where there is credible, objective evidence of risk to life upon return.
What happens if I apply for H&C while a bar applies to me?
An application filed while a bar is in effect generally cannot be considered, and in the meantime a removal order may still be executed — which is why identifying a bar before filing is critical.
How can I check if I’m affected by an H&C bar before applying?
The safest approach is to have your case reviewed by an immigration lawyer before filing anything, so that any applicable bar — and any exception to it — is identified while there’s still time to act on it.