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TORONTO CANADA
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Legalizing Immigration Status In Canada |
Author: George J. Kubes, B.A., LL.B.
It is never too late to try and stop being deported from Canada, by making an urgent Appeal to the Federal Court of Canada. It must be remembered that one of the ways of increasing the chances of winning such an Appeal, is to also apply for Permanent Residence in Canada based on Humanitarian and Compassionate (H&C) grounds, at the earliest possible time. Any person, including a person who was claiming refugee status, and was later refused refugee status at a hearing in Canada, may apply to remain in Canada based on Humanitarian and Compassionate grounds.
So what exactly is involved in this process of applying for Permanent Residence in Canada based on Humanitarian and Compassionate grounds? First, one must be aware, that people who want to live in Canada as Permanent Residents must usually apply for, and obtain a permanent resident visa BEFORE they come to Canada. Immigration Laws of Canada, provide however, that in some circumstamces, for instance, when a person arrives in Canada as a visitor, and that person has stayed in Canada even after the visitor visa expired, or where that person has claimed refugee status, that person may be able to apply for Pemanent Residence in Canada based on Humanitarian and Compassionate grounds from WITHIN Canada.
This is an exception in the law, and that is the reason that it is so important to prove to Canada Immmigration, and explain, as to why one should be allowed to apply for a Permanent Resident status from within Canada, as opposed to applying from the person’s own country. Incidentally, a Permanent Resident of Canada is someone who can live in Canada permanently, but who is not a Canadian citizen. Canadian Citizenship can subsequently be obtained by a Permanent Resident, three years after one becomes a Permanent Resident of Canada.
To qualify for this exemption based on Humanitarian and Compassionate H&C grounds, one must prove that the hardship of being forced to leave Canada and to apply from outside of Canada would cause unusual, excessive, or undeserved hardship. When Canada Immigration is deciding such a case, one of the factors it must take into consideration is, whether there are children who will suffer as a result of being deported from Canada, and it must also determine what the best interests of the children are. This applies not only to children who were born in Canada after the family arrived in Canada, but Canada Immigration must also consider the best interests of the children who were born outside of Canada.
It is therefore very important when applying for H&C, to highlight the situation of the children, the school they may be attending, and whether the children have any special reasons for being harmed if they were forced to leave Canada. Furthemore, the best interests of the children that must be considered by Canada Immigration, extends even to children who are living in Canada as Citizens, but with whom the persons being deported have a very close relationship. As well, the children who must be considered by Canada Immigration, may be those where the grandmother or grandfather may be the primary caregivers of the child. Canada Immigration must also consider the factors relating to a child's emotional, social, cultural and physical well-being, including the child's age, the degree to which the child has gotten used to living and going to school in Canada, any medical issues regarding the child, the impact on the child's education of being deported, and whether the child would face any risks when deported to that other country.
When Canada Immigration is deciding an H&C case, it must also examine whether the adult family members have integrated into Canadian society, whether they have worked in Canada (in this case even illegal employment is better than not having been employed), whether they have any savings in the bank, whether they have any other family members who are Canadian Citizens or Permanent Residents, whether they have done any volunteer work in Canada, been involved with any community organizations, or whether they have attended church. There are many important facts and documentary evidence that must be submitted to Canada Immigration in order to establish the above elements of each case. It is also important that the person applying is not presently on welfare, and that he is not a criminal. The other important issue which is considered by Canada Immigration is the risk to safety in the country of origin, which would be faced by the persons being deported. It is therefore very important to research, describe and submit to Canada Immigration the situation which exists in the country of origin, which would create a risk to safety of the family if they were deported to that country.
The decision in these cases can take at least one and a half years, and it is therefore very important to submit them on a timely basis. In any case, it is very important to start the H&C process, (even late is better than never) so that in the event Canada Immigration later attempts to deport a person or family from Canada, the person concerned then has a much better chance to make and win an urgent Appeal to the Federal Court of Canada and to stop the deportation, because he or she can then argue that one of the reasons that the person or family should not be deported, is because an H&C process had been started, and no decision has yet been made in that process.
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