Q&A: H&C application for PR made by foreign parents of Canadian citizen

LEARNING  MOMENTS (Originally from IMEDA, August 11, 2021)

Today’s question has to do with obtaining permanent resident status for foreign parents.

Question:

Can a single child apply for the Permanent Residency for their parents on H&C basis? Parents’ ages are 50 years for both. They are currently in Canada on a Super Visa and their stay is expiring soon. They want to live here in Canada permanently with their only son who is 25 years old and not married yet. What would be good arguments?

Answer:

Anyone who is inside Canada can make an application for permanent residence on humanitarian and compassionate grounds, unless they are affected by one of the bars set out in s.25 of IRPA https://laws-lois.justice.gc.ca/eng/acts/i-2.5/section-25.html. None of those bars appear to apply here, so there is no reason why the parents could not submit an application should they wish to do so. As a side note, their child would not be applying for them – they would be applying for themselves. The son could support their application by providing written evidence and documentation, but he would not be a “sponsor” in the legal sense.

The real question is not whether they could apply, but whether they have a realistic chance to be accepted – and that depends wholly on the underlying facts of the situation. Keep in mind that the baseline rule is if someone wants to apply for permanent residence, they should meet the selection criteria of a recognized immigration program and get their permanent resident visa before coming to Canada. This is established in s.20(1)(a) of IRPA which states:

• 20 (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence

At 50 years of age they are unlikely to qualify as economic immigrants, and at age 25 their son is unlikely to meet the Minimum Necessary Income requirements in order to simply sponsor his parents via the regular route. I assume that is why you are weighing the possibility of H&C, which is a request for an exemption from the regular rules that normally apply to everyone.

Also keep in mind that legal test for H&C discretion is whether the circumstances would “excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another”. See: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909, <https://canlii.ca/t/gmgsk> So….are there any misfortunes in this situation, and if yes, what are they? The sky is the limit in terms of what you want to argue, but always view the situation through the lens that you are asking an officer for an exemption to the regular laws of Canada, something to which the applicants are not automatically entitled, so you’d better have strong grounds for the request if you want to be successful.

On one hand, an officer might look at this case and think the parents are young enough to take care of themselves in their home country, and presumably have a lifetime of establishment in that country. Their son made a choice to immigrate to Canada, which does inherently involve leaving relatives behind in the home country. If he works for a few years and earns a good income, he can apply to sponsor them, so refusing an H&C request doesn’t involve permanent separation of the family. They also have supervisas, so they can visit him whenever they want to and can stay up to 2 years at a time. If viewed this way, the situation doesn’t seem particularly sympathetic.

However, at this stage we know very little about the particular circumstances of this family, and definitely not enough to form an opinion on whether it’s a good H&C case. I would dig into the following factors more thoroughly:

• What made the son immigrate to Canada? Did he simply make that choice, or was there something that compelled him to move abroad such as a refugee-like situation or another sort of bad situation in the home country?
• What level of establishment do the parents have in their home country? Do they have jobs to go back to? Investments? A place to live? Brothers and sisters there?
• Do the parents have any establishment level in Canada? During their time here did they become integrated? Do they have other close relatives in Canada such as siblings?
• What is the situation in the home country for the parents? Is there a civil war or is it peaceful? Is it a democratic country or a dictatorship? Do they live in poverty or are they financially comfortable?
• Is there anything about the psychological/emotional make-up of the parents or the son that makes separation of the family particularly traumatic or difficult? For example, was there another child who passed away, leaving a painful hole in the family unit? Does the son in Canada struggle with any sort of mental illness or dependency on the parents?
• Why is supervisa status not sufficient to satisfy the family’s desire to spend lots of time together?
• Is there any other viable alternative that would satisfy the need for family reunification? For example, do the parents qualify under any other regular immigration category, and if not, why not? Why can’t the son sponsor them? Has he tried?
• Are there any other personal factors which evoke a feeling of sympathy?

You would need to explore all of these questions in detail with the family before you could give an opinion as to whether the case has chances of success. Given that the parents already have supervisas, they should think very carefully about whether they want to take a gamble on a PR application, because if rejected, it could possibly impact future applications for visitor status.