February 19, 2024 Dükkancılar Law 0 Comments

Applying for permanent residence under Humanitarian and Compassionate (H&C) grounds in Canada when an individual has an exclusion order against them due to the Safe Third Country Agreement (STCA) involves a complex intersection of immigration law and policy. The STCA is an agreement between Canada and the United States that requires refugee claimants to request protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement.

Applying for H&C Grounds

  • Impact of Exclusion Order: Generally, having an exclusion order, especially one related to the STCA, complicates an individual’s ability to apply for permanent residence under H&C grounds. The existence of an exclusion order can be a significant negative factor in the assessment of an H&C application. However, the presence of an exclusion order does not automatically disqualify someone from applying for H&C consideration.
  • H&C Considerations: H&C applications are assessed on a case-by-case basis, taking into account the specific circumstances of the applicant. The fact that an individual has an exclusion order may be considered alongside other factors, such as the establishment in Canada, family ties, best interests of children involved, and potential hardships faced if required to leave Canada.
  • Exclusion and Eligibility: It’s important to note that certain conditions, such as serious criminality or security issues, may render an individual ineligible for H&C consideration. However, an exclusion order based solely on the STCA without additional complicating factors (like criminality or misrepresentation) does not automatically make one ineligible for H&C relief.

Applying for a Work Permit

  • Impact of Immigration Status: The ability to apply for a work permit in Canada typically depends on an individual’s immigration status. Persons with active exclusion orders and no legal status in Canada generally are not eligible to apply for a work permit because they do not meet the requirements of temporary residence.
  • Exceptions and Considerations: In very specific and exceptional circumstances, Canada’s immigration authorities may exercise discretion to allow an individual to apply for a work permit. This could involve cases where there is a compelling humanitarian or public interest reason to issue a work permit despite the lack of status.

Conclusion

While an exclusion order based on the STCA presents challenges to applying for H&C grounds and obtaining a work permit, each case is unique. The specifics of the individual’s situation, including their ties to Canada and the hardships they would face upon return to their home country, are critical in determining eligibility and the likelihood of success.

Can I get a work permit when I apply for Applying for permanent residence under Humanitarian and Compassionate (H&C) grounds in Canada ?

Individuals who have applied for permanent residence in Canada on Humanitarian and Compassionate (H&C) grounds may be interested in applying for a work permit to legally work in Canada while their H&C application is being processed. The process to obtain a work permit under these circumstances involves several steps and specific conditions that must be met. Here’s an overview of how a person under an H&C application can apply for a work permit:

1. Establishing Eligibility for a Work Permit

Normally, to be eligible for a work permit, an individual must demonstrate that they meet the requirements for temporary residents in Canada, such as receiving a job offer from a Canadian employer and, in many cases, the employer obtaining a Labour Market Impact Assessment (LMIA) to prove that there is a need for a foreign worker to fill the job and that no Canadian worker is available.

2. Public Policy Consideration

Immigration, Refugees and Citizenship Canada (IRCC) has provisions under public policy that allow certain individuals with an H&C application in progress to apply for a work permit. This is often considered on a case-by-case basis and may require the individual to demonstrate that there is a significant benefit or humanitarian reason for them to work in Canada while their H&C application is pending.

3. Applying for the Work Permit

  • Application Package: Obtain and complete the work permit application package available from the IRCC website. This package includes forms and instructions on how to apply.
  • Evidence of H&C Application: Include evidence that an H&C application has been submitted and is currently under consideration by IRCC. This could be a copy of the acknowledgment of receipt for the H&C application.
  • Supporting Documents: Provide any additional documents required, such as a job offer from a Canadian employer, proof of qualifications, and, if applicable, a Labour Market Impact Assessment (LMIA) from Employment and Social Development Canada (ESDC).
  • Fee Payment: Pay the required processing fee for the work permit application.

4. Exemptions and Special Measures

In some cases, IRCC may implement special measures or exemptions that allow H&C applicants to obtain a work permit without an LMIA or under expedited processes. These measures are often temporary and can depend on specific circumstances, such as public policy responses to humanitarian crises or labor market needs.

5. Submit the Application

The completed work permit application, along with all required documentation and evidence of the H&C application, can be submitted online or by paper, depending on the applicant’s preference and the specific requirements of the work permit program they are applying under.

6. Await Decision

After submission, the applicant must wait for a decision from IRCC. The processing time can vary based on several factors, including the volume of applications received and the specifics of the applicant’s case.

Important Notes

  • No Guarantee: There is no guarantee that an H&C applicant will be granted a work permit. The decision is at the discretion of IRCC and will consider the merits of the work permit application independently of the H&C application.
  • Legal Status: Applicants should ensure that they maintain legal status in Canada if possible while awaiting the decision on both their H&C and work permit applications.