Humanitarian and compassionate (H&C) applications and refugee claims: how are they different?

This information is for front-line workers and advocates working with women who have experienced family violence and do not have immigration status, but want to stay in Canada permanently.

Immigration law in Canada is complicated. It is easy to make a serious mistake. It is important that a woman with concerns about her immigration status try to get legal help.

This fact sheet explains some of the differences between a Humanitarian and Compassionate (H&C) application and a refugee claim. It may help a woman decide what application to make.

How can a front-line worker help?

You may be able to help a woman who does not have permanent status in Canada by:

giving her information on where to get legal advice about her options to stay in Canada
explaining some of the differences between an H&C application and a refugee claim
helping her gather evidence

A woman without immigration status, who is experiencing family violence and making an H&C application, may be able to get a Temporary Resident Permit (TRP) from Immigration, Refugees and Citizenship Canada (IRCC).

The TRP issued under this policy allows a woman to live in Canada for at least 12 months while she decides what to do next.

She can apply for a work permit at the same time as she applies for the TRP. She will not have to pay a fee for either permit.

She can have both TRP and H&C applications in process at the same time.

A woman who speaks French has the right to:

communicate with immigration authorities in French
make an application to IRCC in French

She can contact a lawyer or a community legal clinic to find out more about French language rights.

What is an H&C application?

An H&C application asks IRCC to allow the applicant to apply for permanent residence on humanitarian and compassionate grounds when they are already in Canada.

An H&C application has 2 stages of approval:

The applicant first has to be approved to apply for permanent residence in Canada for humanitarian and compassionate reasons (“approval-in-principle”).
The applicant then has to be approved for permanent resident status in Canada.

At the second stage, they must meet certain conditions, for example, medical, security and criminal checks.

An applicant who is approved at the first stage can still be refused at the second stage, if they do not meet those conditions.

But in some cases, an applicant can ask to be excused from meeting a condition. For example, they can ask to be excused for not being able to support themselves financially, for having a medical condition that will burden the health-care system, or for being convicted of a certain crime.

What are humanitarian and compassionate reasons?

Almost any reasons that would make people feel compassion and want to help the applicant can be the basis for a successful H&C application.

For example, being established or settled in Canada, and the hardship an applicant will face if they have to return to their home country, can support a successful H&C application.

Another factor is if there is a child who would be directly affected if the applicant had to return to their home country. IRCC must consider what is in the child’s best interests.

Some other reasons an applicant might give include:

their ties to Canada, including family ties
what would happen if family members were separated
concerns about their physical or mental health
the impact on their lives of family violence they experienced in Canada or will experience if they were sent back to their home country

How does IRCC decide H&C applications?

The decision on an H&C application is “discretionary”. This means that immigration officers have a lot of freedom in deciding these applications. But their decision must follow the law.

They must also consider all of the evidence as a whole. This means that they do not look at each piece of evidence on its own, but instead they look at all of it together.

Because there is usually no hearing or interview, it is important to:

send the best possible evidence to support the application,
explain all of the reasons to stay in Canada, and
keep updating the application with any new evidence until IRCC makes a final decision.

If there are mistakes in the application or the supporting evidence is not strong, the application may be denied.

For more information about how H&C applications are decided and what kind of evidence can help, see Making a humanitarian and compassionate (H&C) application.

What is a refugee claim?

An applicant making a refugee claim must prove that they are either a Convention refugee or a person in need of protection. If a claim is successful, the claimant is found to be a protected person and can apply for permanent residence under the Protected Persons and Convention Refugees class.

Refugee claims can be made from within Canada or at a port of entry, for example, a Canadian international airport.

An officer from IRCC or Canada Border Services Agency (CBSA) interviews the applicant to decide if they are eligible to make a refugee claim. If they are eligible, IRCC or CBSA sends their claim to the Immigration and Refugee Board (IRB).

The IRB decides refugee claims. Once the claim is referred to the IRB, claimants have a right to a hearing, and to submit evidence to the IRB to support their claim.

Convention refugee

A Convention refugee must show a well-founded fear of being persecuted in their home country based on at least one of these things:

race
religion
nationality
political opinion
membership in a particular social group — which includes women who have experienced domestic violence and people who are persecuted because of their sexual orientation or gender

Persecution can include situations where there is a reasonable chance that a person could experience serious harm, mistreatment, abuse, punishment, discrimination, harassment, or denial of their most basic human rights.

A woman does not need to show that she has already been persecuted, but she does need to show a risk of persecution if she returns home.

A Convention refugee may be afraid of being persecuted either by government authorities or others. A claimant who fears persecution by others must show that their government cannot or will not protect them.

Person in need of protection

A person in need of protection is someone who would likely face at least one of these things if they are forced to return to their home country:

torture
a risk to their life
a risk of cruel and unusual treatment

If the claim is based on one of the 3 situations of risk, they must show all of the following:

Their own government will not adequately protect them.
The risk affects them personally. It is not a general risk faced by others in the country, such as, famine or civil war.
The risk is not the result of laws, such as being punished for committing a crime, unless these laws do not meet international standards.
The risk is not caused by their country being unable to give them the medical care they need, unless this is because of persecution or discrimination.

To prove that they are a Convention refugee or a person in need of protection, a claimant must also show that there is no place in their home country that they could get to safely, where:

they would be free from the risk that they face, and
it would be reasonable to expect them to live.

This is called the “internal flight alternative”.

What are some other differences between an H&C application and a refugee claim?

H&C Applications	Refugee Claims
H&C applications Refugee claims An H&C applicant does not usually get an interview. IRCC almost always makes a decision based on the written application.	A refugee claimant has the right to a hearing at the IRB unless their claim is not eligible.
Being well-established in Canada, with a work history and strong family relationships, increases an applicant’s chances of success.	Being established in Canada is not relevant to a refugee claim.
IRCC must consider any H&C reasons an applicant should be allowed to stay. They cannot look at risks in the same way the IRB does when it decides a refugee claim. But a situation that puts someone at risk may also cause hardship and support an H&C application. For example, a woman who is at risk because of an abusive spouse in her home country may be able to show H&C reasons she should not be forced to return.	The IRB only considers risks that fit into the “Convention refugee” and “person in need of protection” definitions..
IRCC must consider the best interests of any child under the age of 18 who could be directly affected by their decision.	The IRB decides a claim based only on whether a claimant fits the definition of a Convention refugee or person in need of protection.
Making an H&C application does not give an applicant the right to stay in Canada until IRCC decides. But if they are approved at the first stage, then they can stay while IRCC considers their application at the second stage.	A refugee claimant can stay in Canada until the IRB decides their claim.
An H&C applicant can apply for a work or study permit after their application is approved at the first stage. An H&C applicant does not get health-care coverage through the Interim Federal Health Program (IFHP). But they may be able to apply to IRCC and ask that the IFHP pay all or some of an urgent or essential health-care cost.	A refugee claimant who is waiting for the IRB to decide their claim, can apply for a work or study permit, or both. A refugee claimant gets health-care coverage through the Interim Federal Health Program (IFHP).
An H&C applicant and their family members must meet all the conditions for permanent residence, at the second stage. These conditions include certain health standards and the ability to support themselves financially. In some cases, they may need to ask IRCC to excuse them from a condition that they do not meet. For example, from the condition that they can support themselves financially.	A successful refugee claimant can apply for permanent residence as a protected person. In that category, they do not have to meet all the usual conditions to get permanent residence. For example, they do not have to show that they can support themselves financially, that they meet the usual health standards, or that their family members meet these conditions.
An H&C applicant who is successful at both stages becomes a permanent resident. There are situations when a permanent resident can lose that status and be forced to leave Canada. For example, if they commit a crime that is considered serious under immigration law.	A successful refugee claimant gets the status of a protected person and will, in most cases, also become a permanent resident. But if they lose their status as a permanent resident, they might not be forced to leave Canada. This is because they still have the status of a protected person. In most cases the law does not allow a protected person to be sent back to a country where they would be at risk.
A successful H&C applicant who becomes a permanent resident does not risk losing their permanent resident status only because they travel to or get a passport from their country of nationality.	A person could lose their status as a protected person and permanent resident if they voluntarily go back under the protection of the country they claimed refugee protection against. This could happen if they travel to or get a passport from that country. They could then be forced to leave Canada.
An H&C applicant must pay a fee to apply. An H&C applicant who is successful at the first stage pays an additional Right of Permanent Residence Fee.	There is no fee to make a refugee claim. A protected person pays a processing fee to apply for permanent residence but does not pay a Right of Permanent Residence Fee.

There are more differences between an H&C application and a refugee claim. These differences can be important to a woman’s situation. It is important to get legal advice.

Are there special rules for women in situations of domestic violence?

Yes. But they are only guidelines for IRB board members and IRCC officers. Every case is decided based on the facts of the situation. A woman may be able to get support at the IRB to help her present her case. This is called “accommodation”.

H&C applications

IRCC has guidelines that say immigration officers must consider family violence when deciding if a woman does not need to meet the condition of supporting herself financially at the second stage.

The guidelines say, for example, that a woman experiencing family violence may:

not be able to support herself financially and may need time to do so
need a long time to get a job that pays her enough to support herself and her children
be socially isolated, and have problems with housing and childcare
have low self-confidence and need counselling for mental or emotional trauma before being ready to work
need to be on income assistance because a former abusive partner is not paying child support

IRCC may process H&C applications from women who have experienced family violence faster than other H&C applications. A woman who has experienced family violence can select “FV – In Canada – Humanitarian and compassionate considerations category” when applying through the IRCC permanent residence portal.

Refugee claims

IRB guidelines say that board members deciding refugee claims by women who fear gender-related persecution must consider the violence, inequality, and discrimination she faces based on her gender.

The guidelines also say board members must understand how a woman’s gender can interact with, for example, her race, religion, or culture to increase her risk of being persecuted.

The IRB has guidelines to help people present their cases fairly and in way that reduces the risk that they will be traumatized by the process.

This can mean doing things differently if it might help a woman. For example, a woman might ask that a support person be allowed to attend a hearing with her. Or she may ask that the IRB board member and interpreter be women, or for many breaks during a hearing.

A woman making a gender-based claim can also ask that a member of the IRB’s Gender Related Task Force decide her case. Those members have special training in gender-based refugee claims.

Can a woman make an H&C application and a refugee claim at the same time?

No. A woman cannot make a refugee claim and an H&C application at the same time.

H&C applications and refugee claims are 2 different processes. It is important that a woman get legal advice before deciding which application to make. Once a woman makes an application, there are rules on whether and when she can make a different application.

What if an H&C applicant wants to make a refugee claim?

An H&C applicant can make a refugee claim. When the refugee claim is made, IRCC stops processing the H&C application and returns it to the applicant.

What if a refugee claimant wants to make an H&C application?

A refugee claimant can make an H&C application right away if she withdraws her refugee claim before evidence is presented at her refugee hearing. However, there are risks in withdrawing a refugee claim.

What are the dangers of withdrawing a refugee claim?

If a refugee claim is withdrawn, any conditional removal orders take effect, and the claimant can be forced to leave Canada

Filing an H&C application does not give an applicant the right to remain in Canada until the application is decided.

A refugee claimant who withdraws their claim loses the right to make a refugee claim in Canada. There is no right to make another refugee claim, and it is very difficult to re-open a claim that has been withdrawn.

Also, the claimant’s health benefits from the IFHP are cancelled when they withdraw their claim.

There may also be different reasons why a person might not have the right to make an H&C application.

It is very important to get legal advice from an immigration and refugee lawyer before deciding to withdraw a refugee claim. A woman should try and speak to a lawyer with expertise in gender-based refugee claims.

Can a refugee claimant who is not accepted make an H&C application?

Many unsuccessful refugee claimants can only make an H&C application after at least one year has passed from the date their refugee claim is finally:

refused by the RPD, RAD, or Federal Court,
abandoned, or
withdrawn after evidence was presented at the hearing.</li?

This is often called the “one-year bar“. Many claimants will be forced to leave Canada within that one-year period.

But some people do not need to wait one year. They can make an H&C application right after their refugee claim is finally refused by the IRB. And they can also ask the Federal Court to judicially review their refused refugee claim at the same time.

Judicial review means asking the court to cancel the negative decision on the refugee claim and send the case back to the tribunal for a fresh decision.

These people can usually apply for an H&C right away if forcing them to leave Canada would:

not be in the best interests of a child directly affected, or
put the life of the applicant or one of their dependents at risk because they would not be able to get the health or medical care that they need in their country. This includes mental health treatment.

A child directly affected can include:

the applicant’s own child, no matter where the child was born or where they live, whether in Canada or elsewhere.
a child in Canada who is not the woman’s child but with whom she has a close relationship. For example, this could be a child that a woman looks after, such as her niece or grandchild, or a friend’s child.

Getting legal help

A woman should get legal advice from an immigration and refugee lawyer before she decides whether to make an H&C application or a refugee claim.

A woman should also get a lawyer to represent her in her refugee claim or H&C application.

There may also be legal issues affecting her situation that she is not aware of.

For example, she may be from a country that Canada is not sending people back to because of the human rights situation there.

She may also need to speak to a family lawyer, especially if she has children.

In some situations, if there is a court order under family law that deals with the children, her removal from Canada might go against the order.

A woman should also know that if she does not have immigration status in Canada and she contacts the police, they may decide to contact immigration authorities. The police database will show if there is an immigration warrant in her name.

Here are some places where a woman can get legal information or advice:

Community legal clinics

Community legal clinics give free legal advice to people with low incomes, but not all clinics deal with immigration issues. Student legal clinics in law schools in Toronto, Kingston, London, Ottawa, Thunder Bay, and Windsor also represent and help some people.

To find a legal clinic or any Legal Aid Ontario (LAO) service, visit the LAO website or call 1-800-668-8258 Monday to Friday between 8 a.m. and 5 p.m. For TTY use Bell Relay Service 711.

Legal Aid Ontario telephone line

LAO gives general information and referrals over the phone to people of all income levels, and up to 20 minutes of free general legal advice in many languages.

LAO also has 4 regional offices with a Francophone legal advice line that gives legal information and advice in French to people living in those areas.

Legal aid certificates

LAO gives free legal aid certificates that pay for a lawyer’s services, if a person qualifies based on their income and legal issue. LAO says calls from people experiencing domestic violence get quicker service.

Refugee claims and H&C applications are some of the legal issues LAO may give a certificate for. LAO does not give certificates for temporary residence permit (TRP) applications. But some community legal clinics help people with TRP applications.

LAO’s online lawyer directory may help you find a lawyer who accepts legal aid certificates.

People who have experienced family violence may qualify for a free 2-hour session with a lawyer. This is available through LAO, and some women’s shelters and community legal clinics.

A woman who needs advice from a family lawyer and an immigration lawyer can ask for both.

Law Society Referral Service

This is an online service that gives users the name of a lawyer in their area who they can consult with for free for up to 30 minutes. They can ask for a lawyer who speaks their language, accepts legal aid certificates, or both.

There is also a phone line for people who cannot use the online service. For example, if they are in custody, in a shelter, or in a remote community without access to the internet. This line is available Monday to Friday between 9 a.m. and 5 p.m. Call 1-855-947-5255.

Barbra Schlifer Commemorative Clinic

This organization represents women who experience physical, sexual, or psychological abuse for free in family and immigration law cases.

They also offer counselling and language interpreter services. Call 416-323-9149, for TTY call 416-323-1361.

Luke’s Place

This organization provides free legal advice, support, and referrals to women across Ontario who have experienced abuse. They have a Virtual Legal Clinic that connects women with lawyers for free legal advice on family law issues. Call 1-866-516-3116.

The Ontario Legal Information Centre phone line

This service offers a free 30-minute meeting with a lawyer to get legal information over the phone or online. Book a virtual meeting online or leave a message, and a lawyer will call back. Call 1-844-343-7462.

Ontario Women’s Legal Centre

The Centre provides free summary legal information and advice in family law to Francophone women in Ontario who have experienced domestic violence. A lawyer may also review family court forms or separation agreements.

If a woman experienced sexual assault, she may be able to get additional summary advice in immigration, housing, or criminal law.

Fill out an intake form to get legal help. Or call 1-833-632-0838.

Other community resources

Assaulted Women’s Helpline

The Helpline provides crisis counselling and referrals to shelters, transitional housing, legal advice, and other services 24 hours a day, 7 days a week, for women across Ontario. It is free and available in over 100 languages, including 17 Indigenous languages.

Call 1-866-863-0511. Or call #SAFE (#7233) on a Bell, Rogers, Fido, or Telus cellphone. For TTY use 1-866-863-7868.

Fem’aide

This is a helpline for Francophone women in Ontario seeking support, referrals, and information on woman abuse, including sexual assault. It is available 24 hours a day, 7 days a week. You can chat online with a counsellor. Or call or text 1-877-336-2433. For TTY use 1-866-860-7082.

211 Ontario

This website is an online resource to help people find community and social services available across Ontario. The 211 resource includes a telephone referral service for all types of social services. It is available 24 hours a day, every day of the year, in more than 150 languages. Call 211.