January 13, 2016

Supreme Court Strengthens “Best Interests of a Child” Analysis in H&C Applications

In cases where there are compelling humanitarian and compassionate (H&C) grounds, Citizenship and Immigration Canada has the flexibility to grant permanent resident status to certain foreign nationals who would otherwise not qualify in any class. An important part of H&C applications is that “the best interests of a child directly affected” by this application must be taken into account by the officer making the decision. This consideration applies to all children under the age of 18, whether a Canadian or foreign-born child, no matter what the relationship between the applicant and the child is, including parent-child, grandparent-child, etc.

In Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, the Supreme Court clarified how officers are to use the Ministerial Guidelines in determining whether to approve H&C applications and how the “best interests of a child” are to be determined.

The Court held that the Ministerial Guidelines are not legally binding and are not intended to be either exhaustive or restrictive. Justice Abella, writing for the majority, clarifies that the words “unusual and undeserved or disproportionate hardship” which are found in the Guidelines do not create three new thresholds to be assessed by the officer. Rather, officers must assess all relevant humanitarian and compassionate considerations in a case, and must use these words as instructive, but not determinative, to ensure a flexible approach to H&C applications.

Justice Abella went on to discuss the importance of officers taking into account the “best interests of a child” affected when considering H&C applications. The “best interests of a child” is a very important legal principle in Canada, and Canada is a signatory to several international human rights instruments, including the Convention on the Right of the Child, which confirms the importance of this legal principle.

The Court noted that particularly where the applicant himself/herself is a child, the “best interests of the child” is an extremely important consideration that will influence the officer’s entire analysis of the application:

[41]  It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.  In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual or undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), 2010 FC 149 (CanLII), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

The Supreme Court’s decision reiterates and strengthens the importance of the “best interests of the child” assessment in the context of H&C applications. As this decision is recent, the effects of this decision are yet unknown. However, due to Supreme Court’s emphasis on flexibility in H&C applications and renewed pressure on officers to conduct a thorough “best interests of the child” assessment in such applications, it may lead to an increase in H&C applications, an increase in challenges to refused applications, and higher success rates in litigation at the Federal Court.

(Source)