supreme court's historic judgement on humanitarian & compassionate decisions

he Supreme Court rendered an historic decision (Kanthasamy v. Canada) on December 10, 2015 clarifying how immigration officers should decide applications for humanitarian and compassionate (H&C) consideration. Many refugees and vulnerable migrants must rely on H&C provisions in order to remain in Canada or to be reunited with family members.

The Court favoured a flexible and responsive approach to H&C and rejected the rigid application of narrow guidelines. The ruling should help to ensure that the situation of applicants is fully and appropriately considered, rather than being limited by rigid application of a specific test (“unusual and undeserved hardship”) that is not specifically set out in the legislation.

The Kanthasamy decision reinforces the need to give priority to seriously considering the best interests of the child. This is particularly welcome as H&C decisions have in the past sometimes been so restrictive in the analysis of the best interests of the child as to be largely meaningless.

In another move that will assist vulnerable migrants in establishing their health status, the Court provided directions regarding flexible and realistic evaluation of evidence of mental health issues, including expert reports that the person is suffering from Post-Traumatic Stress Disorder (PTSD). 

NLS' immigration lawyer Jennifer Stone appeared before the Supreme Court of Canada in this case as co-counsel for the Canadian Council for Refugees (CCR), which participated as a public interest intervener. In addition to her work at NLS, Jennifer sits on the Executive Committee of the CCR. Congratulations Jennie!

Other CCR co-counsel in this case were David Matas, Jamie Liew, Rick Goldman and Michael Bossin.

​More information

Read the full text of the Supreme Court decision: Kanthasamy v. Canada (Citizen and Immigration)

Read CCR's Factum filed with the Supreme Court: CCR factum 

For further information, contact: Jennifer Stone at [email protected]