Statutory Basis and Purpose of Section 25(1) IRPA

Pursuant to Section 25(1) of the IRPA, the Minister must—upon request by a foreign national in Canada—and may—for foreign nationals abroad—examine individual circumstances and grant an exemption from applicable criteria if justified by humanitarian considerations, taking into account the best interests of any child directly affected.

The Supreme Court of Canada affirmed in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, that the underlying purpose of H&C relief is to offer equitable remedy in circumstances that “would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another.” As reinforced in Akinleye v. Canada, 2024 FC 1799, the provision functions to mitigate the rigidity of the law in appropriate individual cases.

Legal Note: Section 25 utilizes the permissive term “may.” Relief is never automatic or mandatory, even when hardship exists; it remains an exceptional and discretionary remedy.

The Hardship Standard and Assessment Factors

Historically, administrative guidelines evaluated whether an applicant faced “unusual and undeserved or disproportionate hardship.” In Kanthasamy, the Supreme Court clarified that these words are descriptive rather than three distinct, rigid legal thresholds. Officers must evaluate the cumulative circumstances rather than compartmentalizing hardship into separate hurdles.

Key assessment factors routinely weighed by decision-makers include:

• Establishment in Canada: Depth of community roots, continuous employment history, educational progression, tax compliance, and volunteer contributions;
• Family and Community Ties: Severe emotional, physical, or financial dependencies of family members residing in Canada;
• Adverse Country Conditions: Documented discrimination, systemic social exclusion, or targeted instability in the country of origin;
• Physical or Mental Health: Severe health conditions and the documented impact of removal, including access to care and treatment continuity;
• Hardship of Severance: The personal consequences of family separation or forced departure from Canada.

Best Interests of the Child (BIOC)

Section 25(1) explicitly mandates that decision-makers factor in the Best Interests of a Child Directly Affected (BIOC). In the landmark ruling Baker v. Canada, [1999] 2 SCR 817, the Supreme Court held that officers must remain “alert, alive and sensitive” to the needs, rights, and interests of children.

• Inapplicability of Strict Hardship: As confirmed in Kanthasamy, because children rarely, if ever, deserve hardship, the strict concept of “unusual and undeserved hardship” does not apply when assessing hardship invoked by a child.
• Substantive Inquiry: Officers must examine the child’s age, emotional dependence, schooling, physical and medical needs, and compare their reality in Canada against the anticipated environment abroad.
• Weighing Factor: While the BIOC must be accorded substantial weight, it is not solely determinative and must be balanced against the totality of the record.

H&C Grounds vs. Refugee Protection

An H&C application is not a substitute for an asylum claim. Refugee status requires demonstrating a well-founded fear of persecution under Section 96 or personalized risk of torture, death, or cruel and unusual treatment under Section 97 of the IRPA.

In contrast, an applicant whose claims fall short of Section 96 or 97 thresholds may still qualify for an H&C exemption. While officers cannot re-adjudicate an asylum claim, evidence initially presented during refugee hearings may remain admissible to illustrate general humanitarian considerations.

The One-Year Statutory Bar

Under Section 25(1.2) of the IRPA, an individual whose refugee claim has been rejected cannot submit an H&C application for one full year following the final negative determination (by the RPD, RAD, or Federal Court).

Statutory Exceptions to the One-Year Bar:

1. Removal would pose a direct threat to the applicant’s life due to the inability of their country of nationality to provide adequate health or medical care (IRPA s. 25(1.21)(a));
2. Removal would have an adverse effect on the best interests of a directly affected child (IRPA s. 25(1.21)(b)).

Inadmissibility and Effect on Removal Orders

• Exclusions to Relief: Pursuant to Section 25(1), the Minister’s discretionary waiver cannot overcome statutory inadmissibility stemming from security grounds (s. 34), human or international rights violations (ss. 35, 35.1), or organized criminality (s. 37).
• No Automatic Stay of Removal: Submitting an H&C application does not automatically stay an enforceable removal order. Under Section 233 of the Immigration and Refugee Protection Regulations (IRPR), a stay takes effect only if the Minister affirmatively determines that a stay is justified on humanitarian grounds.
• Judicial Review: Negative decisions cannot be appealed on the merits; they are challenged through an Application for Leave and Judicial Review before the Federal Court of Canada to evaluate procedural fairness and whether the decision was reasonable.