The authorities designed the temporary public policy for Haitian and Zimbabwean nationals who are in Canada. This policy gave these foreign nationals the opportunity to apply for permanent resident status. As such, these individuals were able to remain in Canada, even as they were awaiting a decision on their application. Individuals who meet the eligibility criteria specified subsequently in this document would need to apply by August 04, 2016.
The purpose of this Operational Bulletin (OB) is to provide functional guidance to officers on the subject. This bulletin guides officers about the manner in which they would need to process applications for permanent residence on Humanitarian and Compassionate (H&C) grounds by the nationals of these countries.
The Administrative Deferral of Removal
The nationals of Haiti and Zimbabwe would need to meet the eligibility criteria specified subsequently in this document. Doing so would enable the officers of the Canada Border Services Agency (CBSA) to administratively defer the removals of affected individuals. However, this would only apply to the affected individuals who submit applications for permanent residence on Humanitarian and Compassionate (H&C) grounds. To avail of this, the individuals would need to submit their applications within six months of the current temporary public policy.
The deferral would continue to remain in effect until the authorities make a selection decision i.e. stage 1 on the Humanitarian and Compassionate (H&C) application for permanent residence. This would also apply to applications submitted based on the provisions specified in OB 600, which catered to applications submitted between December 01, 2014 to June 01, 2015.
Situations could arise where an applicant submits an application, but officers do not create it in the Global Case Management System (GCMS). In this scenario, the applicant would need to demonstrate proof that highlights the submission of the application. Such proof could typically comprise documents like:
- A copy of the Humanitarian and Compassionate (H&C) application and,
- Handling public monies receipts
Only upon submission of these proofs, would the applicant be entitled for receiving a deferral.
As mentioned earlier, the applicants would need to meet all of the eligibility criteria specified below. Only then would they be eligible for:
- Applying under the temporary public policy and,
- Deriving the benefit from a deferral of their removal, pending the Humanitarian and Compassionate (H&C) selection decision
The Canada Border Services Agency (CBSA) has the authority to effect the removal of applicants who do not meet the eligibility criteria.
In addition, officers would need to note that other avenues of recourse i.e. a Pre-Removal Risk Assessment (PRRA) might still be applicable in these cases.
The Eligibility Criteria for Temporary Public Policy – Applicable to Applications for Permanent Residence Submitted Under Humanitarian and Compassionate (H&C) Grounds
Foreign nationals are eligible under the temporary public policy, and, by extension, for the deferral of removal if the principal applicants meet the prescribed criteria. To be eligible for this, the applicants would need to:
- Be nationals of Haiti or Zimbabwe
- Be residing in Canada on the day on which the authorities lifted the Temporary Suspension of Removal (TSR) i.e. December 01, 2014
- Be the subjects of a removal order (including conditional removal orders) or must be out of status
- Have never been found to be ineligible because of a refugee claim referred to the Immigration and Refugee Board of Canada (IRB)
- Not be inadmissible on grounds of:
- Criminality
- Serious criminality
- Security
- Violating human rights
- Violating international rights or,
- Organised criminality
- Have not been excluded by the Immigration and Refugee Board of Canada (IRB) from refugee protection under the United Nations Convention Relating to the Status of Refugees
- Have not had criminal charges dropped by the Crown for effecting a removal order
- Have never had an outstanding criminal warrant and,
- Have:
- Made an application for permanent residence on Humanitarian and Compassionate (H&C) grounds in Canada that was pending on or prior to February 04, 2016 i.e. the date on which this temporary public policy came into effect
- Applied for permanent residence on Humanitarian and Compassionate (H&C) grounds in Canada no later than six months from February 04, 2016 i.e. on or prior to August 04, 2016 or,
- Applied for refugee protection as long as the claim for refugee protection was pending on February 03, 2016 i.e. a day prior to the day this temporary public policy came into effect and, the refugee claimant must have applied for permanent residence on Humanitarian and Compassionate (H&C) grounds in Canada no later than six months from a negative decision by the Refugee Protection Division of the Immigration and Refugee Board of Canada (IRB)
It is worth mentioning that in this context, the term ‘negative decision’ refers to the initial decision made by the Refugee Protection Division, whereby the Refugee Protection Division:
- Rejects the claim for refugee protection or,
- Determines whether the claim for refugee protection was abandoned or withdrawn
In the view of the authorities, the six-month time frame from the negative decision commences on the day the Refugee Protection Division renders its decision on the claim for refugee protection. This decision could be a rejection of the claim. Or, it could be a determination as to whether the claim was withdrawn or abandoned. The decision of the Refugee Protection Division would be irrespective of any avenues of recourse. This would include also:
- Any appeals at the Refugee Appeal Division of the Immigration and Refugee Board of Canada (IRB) or,
- Any judicial review by the Federal Court
Note:
- The authorities typically bar individuals who have received negative determinations at the Immigration and Refugee Board of Canada (IRB) within the previous 12 months from applying for Humanitarian and Compassionate (H&C) consideration
- However, individuals eligible under this temporary public policy remain exempt from this 12-month bar
- As such, these individuals have the ability to apply for Humanitarian and Compassionate (H&C) consideration within six months of the negative Immigration and Refugee Board of Canada (IRB) decision