What’s the difference between a refugee claim and an H&C claim?

3. Learn who can’t make an H&C application

There are some situations in which you don’t have the right to make a in Canada.

If you’re a refugee claimant

If you’ve already made a refugee claim in Canada, you can make an H&C application only if you withdraw your claim before presenting any at your refugee protection hearing.

You can withdraw your claim by:

  • writing to the Refugee Protection Division of the (IRB), or
  • saying you withdraw your claim at the beginning of your hearing.

Get legal advice before you withdraw your claim. If you withdraw your claim, you’ll never be able to make a refugee claim in Canada again. A lawyer can help you contact the IRB if that’s what you need to do.

If your refugee claim was rejected

If you make a refugee claim and your claim is rejected, 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  • withdrawn after evidence was presented at your hearing.

This is often called the “one-year bar”.

If you challenge a decision to reject your claim, the one-year period does not start until you get a final decision. For example, if you disagree with a decision of the Refugee Protection Division, you might be able to appeal to the Refugee Appeal Division (RAD). If you do this, you cannot make an H&C application until one year after the RAD rejects your appeal.

And if you’re challenging an IRB decision in Federal Court, you cannot make an H&C application until the Federal Court has made a final decision.

You could be forced to leave Canada within that year.

When the “one-year bar” does not apply

There are 2 situations where the one-year bar does not apply. It does not apply if either:

  • forcing you to leave Canada would not be in the best interests of a child who’s directly affected by you leaving, or
  • your life or the life of one of your would be at risk because one of you would not be able to get necessary health or medical care if you were forced to leave.

If you’re a “designated foreign national”

A is someone who came to Canada in a group that the Minister of Public Safety decides is an “irregular arrival”. If you’re a designated foreign national, you cannot make an H&C application until at least 5 years from the date that the Minister makes that decision.

The Minister can decide this when the group arrives or after they arrive in Canada.

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