3. Learn if you’re allowed to make an H&C application

There are some situations where you do not have the right to make a humanitarian and compassionate (H&C) application.

If you’re a refugee claimant

You cannot have a refugee claim and H&C application in process at the same time. If you already made a refugee claim in Canada, you can make an H&C application if you withdraw your claim before giving any evidence at your refugee hearing.

But there are risks to withdrawing a refugee claim. For example:

• you can never make another refugee claim in Canada, and
• any conditional removal order takes effect, meaning you may be removed from Canada.

You can withdraw by writing to the Refugee Protection Division (RPD) or saying you withdraw at the beginning of your hearing. It's very important to get legal advice before doing this to understand what can happen.

After your refugee claim refused

If you make a refugee claim, you cannot make an H&C application until at least one year from the date that your claim is finally:

• rejected
• abandoned, or
• withdrawn after evidence was presented at your hearing.

If your refugee claim is refused and you challenge the decision, the one-year period only starts after you get a final decision on your:

• appeal to the Refugee Appeal Division (RAD), or
• application for judicial review.

For example, if the RPD refuses your claim, you might be eligible to appeal to the RAD. If you do that, you cannot make an H&C application until one year after the RAD rejects your appeal.

If you challenge the RPD or RAD decision in Federal Court, you cannot make an H&C application until one year from the Federal Court's decision rejecting your judicial review.

You could be forced to leave Canada during that time.

When you can apply right away

Some people can make an H&C application right after their refugee claim is refused by the Immigration and Refugee Board. And they can ask the Federal Court to judicially review the decision refusing their refugee claim at the same time.

You can make an H&C application right away if removing you from Canada would:

• not be in the best interests of a child directly affected, or
• put your life or your dependant's life at risk because you cannot get necessary medical care in your home country.

If this applies to you, it's important to include arguments in your H&C application that explain how you meet one of these exceptions.