The case of this Hamilton family is a situation in which being "humanitarian and compassionate" should be a no-brainer.
By Sarah V. Wayland
Published January 06, 2012
Canadian immigration policy has been designed with three objectives: growing our skilled work force, reuniting families, and helping persons in need of protection.
These three immigration streams (economic class, family class, and protected persons/refugees) are found in our current immigration legislation, The Immigration and Refugee Protection Act (IRPA).
Section A25(1) of IRPA grants persons who do not fit clearly into one of those categories another option: to apply for admission based on humanitarian and compassionate (H&C) considerations.
Such applicants must demonstrate that there are sufficient and compelling reasons to be allowed to apply for permanent residence from within Canada.
In particular, immigration authorities want to see that applicants are self-sufficient and they already have strong ties to Canada.
Right now there are three boys, aged 14, 13 and 11 and living in Hamilton - Canadian citizens no less - who face separation from their mother and their younger and adoring half-sister.
Their mother Lucene first came here at the age of 16 and was married to a Canadian who could have sponsored her to become a permanent resident and ultimately a citizen, but did not. The marriage later ended, with Lucene becoming sole caregiver to the children.
The family applied to to stay together in Canada on humanitarian and compassionate grounds. By all accounts, they meet the criteria for such an application: Lucene earns a good salary in a skilled position, and the family is well-integrated into the community, with the children involved in athletics, Cadets, Scouts, Hamilton Children's Choir and more.
None of the children have ever lived in St Vincent, Lucene's home country.
Yet their application has been rejected, and the future is uncertain. As Canadian citizens, the boys have the right to remain in Canada regardless of what happens to their mother and sister.
They are currently doing well in school and thriving in their community, but they love their mother and separation from her would be difficult, to say the least. If they leave with her, they would lose the ability to visit their Canadian father, whom they also love but who is not able to be their guardian and caregiver.
Putting children in this situation is cruel and flies in the face of the UNICEF Convention on the Rights of the Child, Articles 9 and 10 of which state that children have the right to be raised by their parents and, if separated, have the right to free access to their parents.
Moreover, Canadian law, Canadian jurisprudence and departmental guidelines within Citizenship and Immigration Canada oblige immigration officers to consider the "best interests of the child" in the context of H & C decisions.
As noted in a 2008 report [PDF] on this topic:
H & C decisions are critically important for children, as they represent in some circumstances the only provision in the immigration legislation to allow them to reunite or remain with family members, including parents. H & C decisions also determine whether some children will live in Canada or in another country where their rights may be compromised.
It seems that these were overlooked when the decision was made to deny this family the right to remain together in Canada.
Canadian legislation not only requires provisions of the Immigration and Refugee Protection Act to be construed in a manner that complies with human rights instruments, but it enshrines the notion of "best interests of the child" directly into the section dealing with H & C applications:
25. (1) The Minister shall [...] grant the foreign national permanent resident status [...] if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
In the 1999 Baker case, The Supreme Court of Canada established fundamental principles addressing the "best interests of the child" in the following terms:
Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner.
Despite these provisions, Canadian immigration officials have often been criticized for neglecting to consider the interests of children in their decisions.
For more details of Canadian jurisprudence in this area, please refer to the 2008 report, The understanding and application of "Best Interests of the Child" in H & C decision-making by Citizenship and Immigration Canada [PDF].
Supporters are taking advantage of this time of uncertainty to raise public awareness of the plight of this family and to collect signatures on a petition asking for this family to remain in Canada.
We are also submitting another application to Citizenship and Immigration Canada for her to be allowed to remain in Canada on humanitarian and compassionate grounds. We would like to include the petition along with her application, so time is short.
Please consider signing this petition, and asking your friends to do the same, either by email, Facebook, or other:
The petition site contains a link to a short video interview with Lucene that describes her situation:
You can also email (email@example.com) or phone (613-992-2235) Immigration Minister Jason Kenney's office to express your concern. We want to act civilly and with respect to his staff to gain sympathy for this urgent matter.
Hamilton aspires to be the best place to raise a child. In the end, we hope that an outcry from the people of Hamilton about the injustice of this situation and the potentially devastating outcome of tearing a family apart will have an impact.
We do not make immigration policy, but we can do what's right for members of our own community.