Authored by Yoann Axel Emian, Canadian immigration lawyer.
Hardship has long been recognized as a central component of the humanitarian and compassionate framework under section 25(1) of the Immigration and Refugee Protection Act. Early jurisprudence described hardship as a multidimensional inquiry. Officers were required to determine whether removal would impose unusual and undeserved or disproportionate consequences while balancing enforcement objectives with equitable relief.
While neither the Immigration and Refugee Protection Act nor the Supreme Court has formally codified hardship into distinct categories, recent decisions and commentary support an analytical distinction between objective hardship and subjective hardship. Objective hardship appears to refer to generalized conditions in the country of return, such as economic instability, systemic discrimination, or inadequate access to medical care. Subjective hardship, by contrast, concerns the applicant’s individualized circumstances and vulnerabilities, including psychological trauma, family separation, or chronic health conditions, which may cause otherwise general risks to become disproportionately severe for that person.
The Legal Framework of Humanitarian and Compassionate Considerations
Section 25(1) of the Immigration and Refugee Protection Act provides the statutory basis for discretionary humanitarian and compassionate relief. The provision directs the Minister to examine the circumstances of a foreign national and to grant permanent residence or exemptions when humanitarian and compassionate considerations justify that outcome. The legislation requires consideration of the best interests of any child who is directly affected. This broad equitable authority moderates the strict application of admissibility rules and requires a holistic assessment of the overall merits, including establishment in Canada, family relationships, and hardship.
The first articulation of hardship comes from Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. In that decision, the Immigration Appeal Board defined humanitarian and compassionate considerations as circumstances that would excite in a reasonable person in a civilized community a desire to relieve the misfortunes of another, provided that those misfortunes warrant special relief.
The formulation “unusual and undeserved or disproportionate hardship” was subsequently introduced by Immigration, Refugees and Citizenship Canada through its operational instructions and guidelines. It framed the exercise of discretion under section 25(1) around an assessment of hardship, defining unusual and undeserved hardship as hardship not anticipated by the Immigration and Refugee Protection Act and beyond the applicant’s control, and disproportionate hardship as an unreasonable impact arising from an applicant’s personal circumstances.
Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, marked an important recalibration in the approach to humanitarian and compassionate discretion. While earlier Court decisions had treated the expressions “unusual and undeserved or disproportionate hardship” in the Guidelines as articulating the applicable test, the Supreme Court rejected their use as a rigid threshold that must be met in every case. The Court held that decision-makers must instead undertake a flexible and comprehensive assessment of all relevant individual circumstances.
This analysis must meaningfully consider personal vulnerabilities and the interests of affected children as primary considerations, consistent with Article 3 of the United Nations Convention on the Rights of the Child. The Court emphasized that the purpose of section 25(1) is humanitarian in nature and that discretion must be exercised holistically, without transforming the language of the Guidelines into predetermined barriers to relief.
Subsequent Court decisions interpret hardship through this post Kanthasamy approach and have remitted matters where subjective elements were not adequately addressed. In Rubio v. Canada (Citizenship and Immigration), 2025 FC 609, the Court found that the officer treated the applicant’s vulnerabilities in a shallow, segmented, and incomplete way. The Court criticizes the failure to consider mental-health evidence in a meaningful manner, the dismissal of domestic-violence history for lack of recent corroboration, and the tendency to convert vulnerabilities into reasons against hardship.
In Marshall v Canada (Citizenship and Immigration), 2017 FC 72, the Court found that a humanitarian and compassionate decision becomes unreasonable where the officer adopts a fragmented and compartmentalized assessment rather than a holistic weighing of the applicant’s circumstances. Building on this principle, Gregory v Canada (Citizenship and Immigration), 2022 FC 277 emphasized that officers must meaningfully engage with the totality of the evidence and cannot reduce the humanitarian and compassionate grounds inquiry to a formalistic exercise that merely checks the boxes.
In Singh v Canada (Citizenship and Immigration), 2019 FC 1142 and Singh v Canada (Citizenship and Immigration), 2019 FC 1633, the Court found that officers cannot transform positive establishment factors into reasons to discount hardship. These decisions held that it is unreasonable to rely on an applicant’s resilience, employability, or adaptability as proof that hardship will not occur. Rather, such strengths must be weighed as factors favouring relief under section 25(1) of the Immigration and Refugee Protection Act.
Even before Kanthasamy, In Sebbe v Canada (Citizenship and Immigration), 2012 FC 813, the Court stressed that the establishment analysis must focus on the applicant’s degree of integration and contribution, rather than on whether the Canadian community could continue without them. The inquiry is therefore directed to the applicant’s lived reality, not to hypothetical community resilience.
In Goh v Canada (Citizenship and Immigration), 2024 FC 364, the Court rejected the notion that family and emotional bonds can be adequately preserved through telecommunications alone, emphasizing that qualitative emotional reliance cannot be reduced to the mere ability to maintain contact.
In Bhalla v Canada (Citizenship and Immigration), 2019 FC 1638, the Court found that failing to engage with central evidence deprives the Court of knowing how the officer would weigh it, reiterating that the reasoning must show how relevant evidence was actually considered and weighted. Together, these decisions confirm that hardship under section 25(1) of the Immigration and Refugee Protection Act requires an integrated evaluation of both objective conditions and subjective fragilities; a segmented or cursory analysis, particularly one that reframes resilience as negating hardship, falls short of the compassionate inquiry mandated by Kanthasamy.
Objective Hardship in Humanitarian and Compassionate Considerations
Objective hardship refers to conditions external to the applicant and is assessed through verifiable evidence concerning the country of origin rather than through personal perception. The analysis requires demonstration of impacts that are unusual, undeserved, or disproportionate and that extend beyond the generalized difficulties normally associated with removal.
In Singh v Canada (Citizenship and Immigration), 2025 FC 1836, the Court upheld the refusal of humanitarian and compassionate relief where the applicants relied primarily on general country-condition evidence concerning Sikhs in India but failed to demonstrate personalized hardship or risk. The Officer accepted that minority communities may face difficulties, yet found no evidence of systematic mistreatment or circumstances specific to the applicants that would elevate those conditions to unusual or disproportionate hardship.
In Abdollahi v Canada (Citizenship and Immigration), 2025 FC 1530, the Court upheld an officer’s finding that allegations of gender-based harassment carried limited weight where the record contained little evidence of the applicant’s attempts to mitigate the harm, such as seeking police assistance or other legal avenues. The decision reflects an evidentiary assessment rather than a requirement that local remedies be exhausted.
Access to medical services constitutes objective hardship when conditions in the country of return prevent adequate treatment. These claims are typically supported by reputable sources such as reports from the World Health Organization or Doctors Without Borders. Officers are required to assess both the availability and the quality of treatment rather than the mere existence of services. The situation of persons who identify as lesbian, gay, bisexual, transgender, or queer is evaluated through reports of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, the United States Department of State, or similar organizations that describe violence and discrimination. Decisions applying Guideline 9 of the Immigration and Refugee Board have held that generalized risks are insufficient without personalization.
Claims based on economic instability fail where the evidence does not demonstrate destitution that is disproportionate in comparison with the population of the country of return. Political unrest, including protests or institutional instability, must be linked directly to the applicant. Legislative or institutional barriers, such as discriminatory laws, strengthen claims when supported by targeted reports.
Severe Suffering in Humanitarian and Compassionate Assessment
Jurisprudence has not created a fixed taxonomy of suffering. The legislation and the courts require a holistic assessment of all relevant circumstances without prescribing categories or hierarchies. Hardship in the human sense often appears as severe suffering and privation that threatens survival, dignity, and the possibility of a meaningful life. The experiences listed represent situations that any reasonable decision maker would recognize as incompatible with the core values that animate section 25(1) of the Immigration and Refugee Protection Act. They do not constitute formal legal tests. Rather, they illustrate the kinds of human circumstances that give content to the idea of humanitarian and compassionate relief.
These experiences reveal why hardship cannot be reduced to generalized country conditions or to abstract comparisons between states. Starvation, lack of safe water, untreated illness, or the forced choice between medicine and food demonstrate that removal may destroy the basic capacity to live with dignity. Violence, torture, or sexual abuse show how personal vulnerability transforms external risk into existential harm. Displacement, family separation, and the loss of language and culture illustrate that suffering is not only physical but relational and psychological. When Courts require officers to conduct a holistic assessment, they implicitly acknowledge that these forms of suffering resist mechanical measurement and demand moral judgment.
Approaching hardship through this lens does not replace legal analysis. It clarifies its purpose. The task of the decision-maker is to determine whether removal would impose consequences that our legal order should not tolerate. The list describes circumstances in which the boundary between law and humanity becomes most visible. A humanitarian and compassionate system that ignores such realities would betray its own name.
Personal Vulnerability in Humanitarian and Compassionate Assessments
Subjective hardship refers to the individual circumstances of the applicant and the personal vulnerabilities that Courts recognize as distinct from, yet interconnected with, objective conditions. Evidence such as psychological assessments, medical reports, personal affidavits, and community documentation is used to demonstrate how generalized risks may become disproportionately severe upon removal.
In Rubio v Canada (Citizenship and Immigration), 2025 FC 609, the Court found the hardship analysis unreasonable because the officer failed to engage with updated evidence showing that, even if the applicant obtained employment in the Philippines, her income would be insufficient to support herself and her family, including her disabled grandson. The Court held that ignoring this central evidence deprived the decision-maker of a meaningful assessment of the applicant’s capacity to meet basic needs upon return.
In Mohammadi v Canada (Citizenship and Immigration), 2025 FC 1956, the Court found that once an officer accepts a psychological diagnosis, requiring further evidence about the availability of treatment in Canada or abroad improperly renders the mental-health evidence conditional, contrary to the approach mandated in Kanthasamy. The Court found that minimizing severe anxiety and depression and dismissing their impact on the applicant’s well-being constituted a misapprehension of the evidence.
In Kang v Canada (Citizenship and Immigration), 2025 FC 473, the Court treated intimate partner violence is, in itself, a compassionate factor that must be assessed sensitively under subsection 25(1). The Court found the decision unreasonable where the officer accepted that abuse occurred but failed to engage with its nature and effects, including emotional, physical and sexual abuse, isolation, financial dependence and betrayal of trust, and instead emphasized the applicant’s resilience without explaining the weight given to the abuse.
In Urmi v Canada (Citizenship and Immigration), 2024 FC 1822, the Court set aside the humanitarian and compassionate refusal because the officer failed to address a central, well-supported submission that the family might have to leave their youngest child, in foster care if removed to Bangladesh, thereby creating a serious family separation concern that required responsive analysis under the best-interests-of-the-child framework.
In Aboye v Canada (Citizenship and Immigration), 2025 FC 1330, the Court found it unreasonable where an officer accepts evidence of significant mental-health conditions, including suicidal ideation, yet minimizes their weight by focusing on the availability of treatment in the country of return rather than on the adverse psychological impact that removal itself would cause, inconsistent with the principles articulated in Kanthasamy.
Toward an Integrated and Individualized Hardship Framework
Jurisprudence confirms that individualized vulnerabilities can intensify the practical impact of general conditions in the country of return, requiring a contextual and integrated hardship assessment. More broadly, the post-Kanthasamy framework reflected in cases such as Marshall, Gregory, Bhalla, Singh, and Goh emphasizes holistic and responsive reasoning. A hardship determination becomes unreasonable when the analysis is compartmentalized, where central evidence is not grappled with, or where the officer minimizes the depth of establishment and emotional dependency, undermining a contextual evaluation of how subjective fragilities interact with objective realities.
The emerging jurisprudence points toward a more integrated understanding of hardship that combines personal vulnerability with external circumstances. Recent decisions treat subjective hardship as a central component of the analysis rather than as a peripheral consideration. The post-Kanthasamy jurisprudence confirms the continuing role of hardship while avoiding prescriptive thresholds, reinforcing that decision-makers must conduct a contextual and individualized assessment under section 25(1) of the Immigration and Refugee Protection Act.
In Mohammadi v Canada (Citizenship and Immigration), 2025 FC 1956, the Court underscored the need for evidence-based personalization by holding that once a psychological diagnosis is accepted, officers may not render that evidence conditional through speculative inquiries about treatment availability. Read alongside the reasonableness framework in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, this approach suggests that meaningful engagement with individualized evidence forms part of the minimum justificatory burden in humanitarian and compassionate decisions.
These developments raise broader questions about fairness and proportionality in the administration of humanitarian discretion. The Court’s repeated intervention where officers employ segmented or cursory reasoning invites reflection on whether equitable relief should more explicitly temper enforcement objectives, particularly in cases marked by vulnerability. Future jurisprudence may further clarify how the compassionate purpose of section 25(1) interacts with administrative law principles governing the scope of reasonable outcomes.
Courts now apply a nuanced approach that examines the intersection between personal vulnerability and external conditions. The post-Kanthasamy jurisprudence demonstrates a continuing shift toward a contextual and individualized framework for humanitarian and compassionate determinations. Administrative discretion is increasingly constrained by the requirement for cumulative analysis, including meaningful consideration of objective hardship and subjective hardship, giving priority to equity while maintaining the relevance of enforcement objectives.
