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 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). The Court found that the hardship analysis for the 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.
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.
Separation of H&C Applications
Although the Principal Applicant and her daughter applied jointly, the Court held that their circumstances were sufficiently different to warrant independent consideration. The daughter’s strong establishment in Canada, lack of personal wrongdoing, and significant hardship upon removal distinguished her case from that of her mother.
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 because they were not raised in the original H&C application. The decision highlights the importance of raising and supporting all relevant factors at the application stage.
Importance of the Case
The decision reinforces the need for comprehensive, individualized H&C assessments and demonstrates that different family members can receive different outcomes based on their own circumstances.