Humanitarian and Compassionate Applications: Key Lessons from Recent Case Law

Erhun v. Canada, 2026 FC 364 is a judicial review of a decision by Immigration, Refugees and Citizenship Canada (IRCC) denying a Humanitarian and Compassionate (H&C) application for permanent residence. The Federal Court partially allowed the application, upholding the refusal for the Principal Applicant (PA) while finding the decision unreasonable with respect to the Associate Applicant, her daughter. The case provides important guidance on H&C assessments. 

Understanding Hardship in H&C Applications 

A central issue in this case is the meaning of “hardship” within the context of H&C applications. Drawing from Kanthasamy v Canada (Minister of Citizenship and Immigration), the Court reiterates that hardship involves circumstances that would prompt a reasonable person to feel compassion and a desire to relieve another’s suffering. It is not limited to extreme or unusual situations but must go beyond the normal difficulties associated with removal from Canada. 

Hardship is assessed holistically, considering factors such as family separation, health, establishment in Canada, and the Best Interests of the Child (BIOC). Importantly, the Court emphasizes that ordinary establishment—such as long-term residence, employment, or community ties—is generally insufficient on its own to justify relief. Instead, applicants must demonstrate exceptional circumstances. 

In this case, while the Officer acknowledged that removal would cause some difficulty, they concluded that the hardship faced by the Principal Applicant did not meet the threshold for granting relief. However, the Court found that the hardship analysis for her daughter was inadequate, particularly regarding the impact on her education and lifelong establishment in Canada. 

The Impact of Misrepresentation and Criminality 

Misrepresentation and criminality played a decisive role in the outcome for the Principal Applicant. Her history included a criminal conviction in the United States, use of aliases, and repeated failures to disclose material facts to immigration authorities. The Court agreed with the Officer that this pattern of dishonesty constituted a serious negative factor. 

The Principal Applicant’s continued misrepresentation, even in later proceedings, demonstrated a lack of accountability and respect for immigration laws. As a result, her application was reasonably denied. 

In contrast, the Court found it unreasonable to attribute these negative factors to the daughter. As a child, she had no control over her mother’s actions and could not be held responsible for the misrepresentation that occurred when she was an infant. The Court stressed that children should not be penalized for the wrongdoing of their parents, particularly in H&C assessments. 

Separation of H&C Applications 

A significant aspect of this case is the recognition that H&C applications can and, in some cases, should be assessed separately. Although the Principal Applicant and her daughter applied jointly, the Court held that their circumstances were sufficiently different to warrant independent consideration. 

The Respondent conceded that relief could have been granted to the daughter even if denied to the Principal Applicant. The Court agreed, noting that the daughter’s strong establishment in Canada, lack of personal wrongdoing, and significant hardship upon removal distinguished her case from that of her mother. 

This finding reinforces the principle that H&C decisions must be individualized. Factors such as age, dependency, and personal conduct can justify different outcomes for applicants within the same family. 

Failure to Raise Key Issues at the Application Stage Limits Later Review

The Principal Applicant’s identity as an LGBTQ individual and her same-sex marriage were raised as potential factors in assessing hardship. However, the Court declined to consider these issues. 

The reason was procedural: the applicants did not raise arguments related to LGBTQ risks or conditions in Nigeria in their original H&C application. As a result, the Officer had no opportunity to assess these factors. The Court emphasized that judicial review is not a forum for introducing new arguments that could and should have been presented earlier. 

This highlights an important lesson: while LGBTQ status can be a significant factor in H&C applications—particularly when removal may expose an individual to discrimination or harm—it must be clearly raised and supported with evidence at the application stage. 

Importance of the Case 

This case is important for several reasons. First, it clarifies the meaning of hardship and reinforces the need for a comprehensive, individualized assessment. Second, it underscores the serious consequences of misrepresentation, while also protecting children from being unfairly penalized for their parents’ actions. 

Third, it confirms that H&C applications can be separated, allowing decision-makers to reach different conclusions for different applicants based on their unique circumstances. Finally, it highlights the procedural requirement to raise all relevant factors—such as LGBTQ status—during the initial application. 

Overall, the decision demonstrates the balancing act inherent in H&C assessments: weighing compassion and fairness against the integrity of the immigration system. It also reinforces the Court’s role in ensuring that such decisions are reasonable, transparent, and grounded in the evidence.