CHOOSING BETWEEN

MAKING A REFUGEE

CLAIM OR AN H&C

Factors to consider and scenarios for

discussion

Downtown Legal Services

(DLS)

Poverty law clinic associated with the University of Toronto Faculty of Law

Areas: criminal law, family law, refugee law, tenant housing and university affairs

Overview

Why do I have to choose?

The basics of an H&C application

The basics of a refugee claim

Important differences between H&C

applications and refugee claims

Factors to consider when choosing between

the two

Withdrawing a refugee claim

Hypothetical scenarios

Why Choose?

New law: H&C application and refugee claim cannot be made at the same time

12 month bar: If refugee claim fails, cannot make an H&C application for at least 12 months Exceptions:

You have children under 18 who would be adversely affected if you were removed from Canada, or

You have proof that you or one of your dependants suffers from a life-threatening medical condition that cannot be treated in your home country

If refugee claim fails, likely to be removed from Canada before being able to make an H&C application

H&C in a Nutshell

An application for PR from inside Canada

A request for an exemption from the rule

Factors:

Establishment

Hardship

H&C in a Nutshell

Examples of establishment: Family and friends in Canada

Work

School

Community activities

Examples of hardship War

Natural disaster

Lack of medical/mental health care

No family or friends

Domestic violence

H&C in a Nutshell

Important distinction: risk and hardship

CIC does not consider risk in an H&C

application

Express the risk as a type of hardship

E.g. Domestic abuse. Officer cannot consider the

risk she will face from the abuser. However, can

emphasize that she will suffer hardship because

there is no support or protection for abused

women in her country.

Refugee Claims

Convention refugee

race, religion, political opinion, nationality, or membership in a particular group

Persons in need of protection

a personal risk of torture, risk to his life, or risk of cruel and unusual treatment or punishment

Must also show:

Lack of state protection

Specific risk

No internal flight alternatives (IFAs)

Questions or Comments?

Lauren Pearce Kristin Marshall

Differences

H&C Applications Refugee Claims

• $550 per adult

• $150 per child under 22

• No cost

• No deadline • If claim made in an office, must complete

BOC during eligibility interview

• At a port of entry, 15 days after referral to

IRB

• Processing time up to 36 months • If from a DCO and made claim at an inland

office: no later than 30 days

• If from a DCO and made claim at a port of

entry: no later than 45 days

• If not from a DCO: no later than 60 days

• Decision could be made right at the end of

the hearing or up to a few months after

• Can be removed while the

application is pending

• Cannot be removed while the claim is

pending

• The more time in Canada, the

better.

• The less time in Canada before making

the claim, usually the better

H&C vs. Refugee Claims

Take into account all factors discussed:

Based on her story, can she meet the definition of a convention refugee?

If yes, is evidence (both country research and specific evidence of individual) available to support her claim?

Which country is she from? If DCO, claim likely to fail. Current list:

http://www.cic.gc.ca/english/refugees/reform-safe.asp

E.g. Mexico – 82.9% rejection

How long has she been in Canada?

Are there children involved?

Any health consideration?

Evidence to support discrimination or hardship more than risk?

Etc.

Examples

Certain categories of people might be

better off making an H&C:

Domestic violence

Sexual orientation related hardship/risk

Generalized risk

Lack of medical care

Withdrawal of a Claim

Is it possible to withdraw a refugee claim and

apply for H&C instead?

Only if “substantial evidence has not been heard”

No stay of removal

H&C or Refugee Claim?

Hypothetical Scenarios

Scenario #1: H&C or Refugee?

Ms. Cruz came to Canada from Peru in 2010.

She came on a visitor’s visa which expired and

she has lived without status. Despite terrible

domestic abuse in her past in Peru, she has

thrived in Canada and has started her own

business. Can she apply for H & C? Should

she make a refugee claim?

Scenario #2: H&C or Refugee?

Mr. Solarz came to Canada in December 2012. He is a Roma man and a father of four children. His wife died of cancer. He works as a cashier at a grocery store, and all of his children are in school. Before he came to Canada, he suffered serious racial discrimination in Hungary. His oldest son was bullied and beaten up by skinheads and police failed to investigate or do anything. He fears further incidents if they are sent back to Hungary. Should they apply for H&C or make a refugee claim?

Scenario #3: Withdrawing the

Claim

Maria and Jose recently came to Canada. Jose was a political activist in Colombia where he was arrested by the police a few times and targeted by paramilitary groups because of his activities. Maria became known as Jose’s partner and was almost kidnapped twice. They made a refugee claim at the port of entry, and their hearing is in 30 days. They recently started having fights where Jose hit Maria. She decided to leave him and find a life for herself in Canada. However, there is a problem: Maria’s refugee claim is dependent on Jose’s, and she is not sure whether to continue with the refugee hearing. Should Maria withdraw her claim and apply for H&C instead?