Fridae

At first glance, Canada's Immigration Act and its Immigration Regulations would not suggest that Canada is, in fact, a very welcoming country for gay and lesbian immigrants. The word, "spouse" is defined in the Act to include only a person married to someone of the opposite sex. Fortunately the legislation contains very useful tools that serve to facilitate the immigration of gay and lesbian partners.

Visa officers can always recommend approving an application where they have good reason to believe that an immigrant will become successfully established in Canada despite their inability to meet the selection criteria. In addition, the officers in charge of visa offices have the authority to exempt any person from the selection criteria altogether if there are compelling humanitarian or compassionate grounds on which to do so.

This provides two ways whereby same sex partners can benefit from immigration to Canada.

The first permits immigration of the same-sex partners of Canadian citizens and permanent residents. Generally speaking, these couples fall into three types: those who have lived together in Canada, while the non-Canadian was visiting as a student, temporary worker, or even a tourist; those who have lived together while the Canadian has resided abroad, and where the Canadian is now seeking to return to Canada; and those where the couple have maintained a long-distance relationship.

The second permits a successful immigrant to proceed to Canada accompanied by his or her same sex partner. The partner would put forward an independent application for permanent residence, but the two cases would be processed together.

In general, cohabitation for a period of one year is the hallmark of successful cases of same-sex partners. The two partners should be in a position to demonstrate that they have lived together, and represented themselves to their friends (but not necessarily the public) as a couple. Evidence of cohabitation can involve things like:

• Joint bank account
  
• Cosigning a lease, or joint ownership of a home
  
• Vacations taken together
  
• Letters from friends who know the partners as a couple
  
• Wills made in each other's favour

Note that this is only a partial list. The evidence submitted in any particular case will depend very much on the personal circumstances of the couple.

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However, this still leaves same sex couples at the mercy of a discretionary authority, which is the exception to an established legislative scheme. Hopefully, this will change with the introduction of a new Immigration Act and accompanying regulations in the new Parliament. Canada passed omnibus legislation at the federal level in 1999 to place gay and lesbian couples on the same footing as heterosexual couples for all matters within the federal jurisdiction - such as income tax, pensions and a wide variety of other areas.

The only two areas excepted were the definition of marriage, and immigration - the former as a craven sop to social conservatives in the governing Liberal party's caucus, and the latter because of the proposed amendments to the Immigration Act which were due to bring in this change. However, with the dissolution of Parliament for last autumn's general election, the new Immigration Act died on the Order Paper, and we will probably have to wait for a year for the new legislation to be enacted and to come into force.

One drawback of this change, however, will be that the one-year cohabitation guideline will likely become enshrined in regulation. Policy exemptions will be made where cohabitation would be prohibited or impeded by local law or custom. However, it will be considerably more difficult for couples that do not actually live together to substantiate their relationship to the satisfaction of a visa officer.

Demonstrating that there is a genuine relationship is only the larger battle. It also bears noting that successful immigrants must pass medical and security checks before they will receive an immigrant visa.

A criminal record will bar admission to Canada if the immigrant has been convicted of an offence that is equivalent to an offence in Canada. Canada has no penal statutes prohibiting homosexual conduct. There is an offence of anal intercourse, which contained an exception for acts committed in private between two consenting adults.

However, even this limited prohibition was struck down as being offensive to the equal protection provisions of Canada's Charter of Rights. There are methods to overcome criminal inadmissibility to Canada. Any potential immigrant with a criminal record should seek the advice of a Canadian immigration lawyer before submitting any application.

The medical check is of more pressing concern to many gay couples. Canada does not routinely test immigrants for HIV. However, an HIV test will be administered if there exist other conditions that indicate the need for a test-for example, a positive VDRL (a test for other sexually transmitted disease) or Hepatitis B. The medical history form now used in the medical check asks specifically about HIV or other immune disorders.

There are methods to overcome medical inadmissibility. Any couple considering immigration to Canada where one partner is HIV+ should consult with a Canadian immigration lawyer before applying to obtain advice about their likelihood of success.