Shackleford v. Canada (Citizenship and Immigration), 2019 FC 1313 : H&C Refusal Upheld Where Long Residence and Community Establishment Were Accumulated Without Status and Supporting Evidence Was Limited

The Federal Court reviewed the refusal of an inland permanent residence application based on humanitarian and compassionate grounds.

The applicant, a Jamaican citizen in her seventies, had remained in Canada without status for approximately 14 years, supported herself through caregiving work, participated in her church, and submitted letters describing her character and community connections.

The Court upheld the refusal, finding that the officer reasonably concluded that the evidence of establishment and personal ties was insufficient to justify exceptional H&C relief.

Key Principle

Kanthasamy does not eliminate hardship from the H&C analysis. Rather, it prevents officers from treating “unusual and undeserved or disproportionate hardship” as rigid legal thresholds.

Hardship remains a relevant consideration, together with establishment, family relationships, BIOC, and other compassionate circumstances.

At the same time, lengthy residence in Canada does not automatically justify H&C relief, particularly where the establishment was accumulated while the applicant lacked lawful immigration status.

Background

The applicant entered Canada from Jamaica as a visitor in January 2005 and did not leave when her authorized status expired.

During her years in Canada, she worked as a caregiver for elderly persons and children, supported herself, participated in her church, and developed community relationships.

She did not seek to regularize her immigration status until 2017.

The officer acknowledged positive establishment and letters from friends and former employers but assigned them limited weight. The officer found that the letters were general, provided little detail regarding the depth of her relationships, and did not establish that separation would cause significant adverse consequences.

There were no children directly affected by the application.

Court Findings

The applicant argued that the officer improperly focused on hardship and failed to properly assess her establishment following Kanthasamy.

The Court rejected that argument.

It explained that Kanthasamy changed the manner in which hardship is assessed, but did not remove hardship from H&C decision-making. The problem identified by the Supreme Court was the use of “unusual,” “undeserved,” and “disproportionate” as inflexible thresholds that could prevent consideration of other compassionate circumstances.

H&C relief nevertheless remains exceptional and discretionary, and section 25(1) is not intended to function as an alternative immigration program simply because an individual has remained in Canada for a long period.

The Court also upheld the officer’s treatment of establishment.

Although the applicant had lived in Canada for many years, that establishment had largely developed while she had no legal status. The officer did not ignore her establishment but reasonably assigned it reduced weight in light of the circumstances in which it was accumulated.

The Court recognized that some cases may involve establishment so deep and extensive that its disruption strongly supports H&C relief. However, the evidence in this particular case did not reach that level.

The officer was also entitled to consider that skills acquired through caregiving in Canada could assist the applicant in re-establishing herself in Jamaica. This did not necessarily convert a positive establishment factor into a negative one; rather, it was relevant to assessing the practical hardship of return.

Outcome

The Federal Court dismissed the application for judicial review, finding that the officer reasonably assessed the applicant’s establishment, personal ties, and expected hardship and that the evidence was insufficient to justify H&C relief.

Case Citation:

Shackleford v. Canada (Citizenship and Immigration), 2019 FC 1313 CanLII