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Immigration and Refugees Law
Can You Apply for H&C While a Refugee Claim is Pending in Canada?
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Can You Apply for H&C While a Refugee Claim is Pending in Canada?
A common question among asylum seekers in Canada is whether they can simultaneously pursue a Humanitarian and Compassionate (H&C) application while their refugee protection claim is still active. Practically speaking, a person whose refugee claim is still pending cannot have an H&C application examined at the same time.
The Statutory Bar: IRPA Section 25(1.2)(b)
The primary legal barrier is found in the Immigration and Refugee Protection Act (IRPA). Section 25(1.2)(b) explicitly dictates:
“The Minister may not examine the request if … (b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division”
Submitting vs. Examining an Application
The text of the law draws a distinct line between the physical submission of an application and its actual assessment. On one hand, the regulations outline the administrative requirements for making a request:
“A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing…”: Immigration and Refugee Protection Regulations, s. 66.
Furthermore, the Act states that the Minister takes formal charge of the request once fees are settled:
“The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.”: Immigration and Refugee Protection Act, s. 25(1.1).
However, despite these administrative mechanics of submission, the Minister is strictly prohibited from examining the H&C request as long as the refugee claim remains pending before the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD).
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Federal Court Jurisprudence
The Federal Court of Canada has consistently upheld this statutory bar, clarifying that it acts as a legal prohibition on reviewing the merits of the case rather than a mere administrative hurdle.
- Bello v. Canada (2023 FC 1094)
In Bello v. Canada (Citizenship and Immigration), 2023 FC 1094, at paragraph 49, the Court affirmed:
“The Applicant did not apply under s. 25(1) of the IRPA. Moreover, as the Officer noted, the Applicant is statutorily unable to avail herself of s. 25(1) of the IRPA given her pending refugee protection claim. The Officer noted the application of s. 25(1.2)(b) of the IRPA states ‘(The Minister may not examine the request if (…) (b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division)’.”
- Otiteh v. Canada (2022 FC 1537)
Similarly, in Otiteh v. Canada (Citizenship and Immigration), 2022 FC 1537, at paragraph 18, the Court noted:
“First, with respect to s. 25(1), the Officer reasonably declined to consider the H&C grounds put forth by the Principal Applicant, because of the exception under s. 25(1.2)(b), since the Principal Applicant had a pending refugee protection claim before the IRB at the time he submitted his permanent residency application…”
- Yuris v. Canada (2017 FC 981)
In Yuris v. Canada (Citizenship and Immigration), 2017 FC 981, the Federal Court reiterated the literal statutory text to emphasize that the restriction blocks the actual evaluation of the application:
“The Minister may not examine the request if the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division.”
A Narrow, Fact-Specific Exception
While the general rule is clear, unique procedural circumstances can occasionally alter how the bar is applied. In Liang v. Canada (Citizenship and Immigration), 2017 FC 287, without creating a broad or sweeping exception, the Federal Court determined that based purely on the unique factual background of that specific case, an officer was permitted to rule on an H&C application:
“on the particular facts of this matter, the Officer was not precluded pursuant to s 25(1.2)(b) of the IRPA or otherwise, from rendering the H&C decision while the RPD’s re-determination of the Female Applicant’s claim was pending.”
This underlines that while the general legal principle stands firm, unusual procedural histories require a careful look at the exact facts of the case.
Conclusion: The Practical Outcome
Ultimately, under normal conditions, an H&C application cannot be concurrently examined if a refugee claim is pending.
- If the question means, “Can an applicant have their H&C application reviewed and decided at the same time?” The answer is No.
- If the question means, “Can an applicant physically submit the forms?” The cautious legal interpretation is that while the law targets the examination of the file, the practical result remains unchanged: your H&C application will not move forward as long as your refugee claim is pending.
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