Reminder: Granting of H&C is an “exceptional relief”

[ethelstan]

In reviewing many cases om Canlii - IAD dismiss I would say majority of H&C appeal regarding permanent resident obligations. I actually had not realized how difficult and rare it is to overcome H&C. Too often the excuse of working, allow the kids to complete elementary, not returning at first available opportunity- ultimately became the downfall of the applicant. All the while, the applicant has no significant ties to Canada.

The granting of an appeal for H&C consideration is an “exceptional relief” (Khosa at para 57; Nekoie at para 30; Shaath v Canada (Citizenship and Immigration), 2009 FC 731 (CanLII) at para 42). It has been consistently held that an H&C exemption under the IRPA provisions is an exceptional and discretionary remedy (Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 (CanLII) at para 15; Adams v Canada (Citizenship and Immigration), 2009 FC 1193 (CanLII) at para 30). This relief sits outside the normal immigration classes or refugee protection streams by which foreign nationals can come to Canada permanently or permanent residents can maintain their status. It acts as a sort of safety valve available for exceptional cases. A common theme animating the H&C considerations in the IRPA is the need to link the H&C relief to some form of serious hardship to be corrected, to some misfortunes that amount to more than the normal and expected consequences of removal from Canada and that need to be relieved.

 

[canuck78]

In reviewing many cases om Canlii - IAD dismiss I would say majority of H&C appeal regarding permanent resident obligations. I actually had not realized how difficult and rare it is to overcome H&C. Too often the excuse of working, allow the kids to complete elementary, not returning at first available opportunity- ultimately became the downfall of the applicant. All the while, the applicant has no significant ties to Canada.

Canada has extremely lenient RO to start with. If people are not ready to move for multiple years they should not be applying to immigrate.

 

[Copingwithlife]

Canada has extremely lenient RO to start with. If people are not ready to move for multiple years they should not be applying to immigrate.

Exactly

If you can’t manage to put in two years of residency out of five years to live in country , repeat TWO years , you got issues

 

[dpenabill]

In reviewing many cases om Canlii - IAD dismiss I would say majority of H&C appeal regarding permanent resident obligations. I actually had not realized how difficult and rare it is to overcome H&C. Too often the excuse of working, allow the kids to complete elementary, not returning at first available opportunity- ultimately became the downfall of the applicant. All the while, the applicant has no significant ties to Canada.

As others have noted, the PR Residency Obligation is itself rather lenient, allowing PRs a great deal of flexibility. New PRs can take up to three years to make the move to Canada. And notwithstanding the required intent to settle and live IN Canada PERMANENTLY just to qualify for the grant of PR status, PRs can retain PR status despite living and working outside Canada more than they live in Canada, NO QUESTIONS ASKED, for up to three years in any five year period since becoming a PR.

Over and above that, however, it is patently clear that enforcement of the RO is also remarkably lenient. This is a huge benefit for many PRs.

BUT this can be a trap or at least be misleading. It seems more than a few see the leniency as a license or some sort of permission to not actually comply with the RO. It appears that more than a few rely on how lenient if not overtly lax enforcement of the RO is. It is surprising how many are surprised when they run into a decision to terminate their status.

All of which is a preface for noting that IRCC and CBSA give a lot leeway for H&C relief. They are not tough. So by the time a case is on appeal, by the time a visa officer or Minister's delegate has concluded there are NOT sufficient H&C grounds to allow an inadmissible PR to retain PR status, and thus has made the decision to terminate the PR's status, yeah it is very likely the PR will have a hard time convincing the IAD they should be given H&C relief.

It warrants also recognizing that most of the IAD cases involve PRs outside Canada without a valid PR card, meaning most have been a PR for more than five years without settling in Canada, not just something more than three years in the last five. For PRs who have returned to Canada but become subject to inadmissibility proceedings, many of those who lose the appeal have left Canada foe an extended time while the appeal is pending.

So, yep, H&C relief for RO breaches is NOT a blank check. And any PR who fails to stay in compliance with the RO should realize they are at risk of losing status. But nonetheless, IRCC and CBSA do tend to allow a remarkable amount of leeway . . . but those relying on that should be aware of the risks and exercise caution.

 

[scylla]

In reviewing many cases om Canlii - IAD dismiss I would say majority of H&C appeal regarding permanent resident obligations. I actually had not realized how difficult and rare it is to overcome H&C. Too often the excuse of working, allow the kids to complete elementary, not returning at first available opportunity- ultimately became the downfall of the applicant. All the while, the applicant has no significant ties to Canada.

Keep in mind they you are only reading the appeal cases. Not the ones that IRCC approved on first pass.

 

[ethelstan]

@dpenabill and @scylla are spot-on. Almost 90%+ cases I see on CanLII involves PRTD document versus originating in-land from report 44(1). This is probably in combination that in-land applicant will be less likely breach RO as they can simply wait the clock - OR - the fact that IRCC is more lenient towards in land applicant as the are likely more established here in Canada versus overseas PRTD applicant (that having ties to Canada is seen as key H&C consideration).