LESBIAN & GAY IMMIGRATION TASK FORCE TAKING THE NEXT STEP TAKING THE NEXT STEP Recognizing the rights of Canadian lesbians and gay men to sponsor their partners under Canadian immigration law. A brief to the Honourable Sergio Marchi, Minister of Immigration November 12, 1993. LEGIT, the Lesbian and Gay Immigration Task-Force, P.O. Box 384, Station A, Vancouver, British Columbia, V6C 2N2. LEGIT Support Groups in Montreal and Toronto. The Lesbian and Gay Rights Section of the British Columbia Branch of the Canadian Bar Association. EGALE, Equality for Lesbians and Gays Everywhere, Ottawa. ASK, the Association for Social Knowledge, Vancouver, (responsible for immigration issues within the International Lesbian and Gay Association, based in Brussels). The Ad Hoc Committee of the Faculty Association on Lesbian and Gay Issues, University of British Columbia. The December 9th Coalition, Vancouver. THE ISSUE Canadian immigration law discriminates on the basis of sexual orientation. Heterosexual Canadians can sponsor a non-Canadian as a husband or wife. Lesbian and gay Canadians cannot sponsor their partners, no matter how long they have been living together. Other provisions on "dependants" also discriminate on the basis of sexual orientation. In the recent federal election campaign, Liberal party campaign literature promised that the Canadian Human Rights Act would be amended to prohibit discrimination on the basis of "sexual orientation". Jean Chretien stated in a letter dated September 20th, 1993: Liberals have long agreed that discrimination on the basis of sexual orientation be prohibited. And he promised to "seek guidance" on legislative change on Canadian immigration law on lesbian and gay issues. The new Liberal Member of Parliament for the Rosedale riding in Toronto, Bill Graham, was more explicit. He is committed to allowing same-sex partners of Canadian citizens to immigrate. RAISING THE ISSUE In December, 1991, LEGIT, the Lesbian and Gay Immigration Task-Force, was formed in Vancouver by a group of Canadian lesbians and gay men in long term relationships with non-Canadians. It has corresponding members in all regions of Canada. In January, 1992, Christine Morrissey and Bridget Coll began a court case challenging Canadian immigration law. Bridget Coll had not even been allowed to apply for permanent residency as an individual applicant (after completing a routine questionnaire) and "spousal" sponsorship was not available. In the spring of 1992 a lawyer for the Department of Justice asked that Bridget apply for permanent residency to have an application to accompany Christine's sponsorship application, suggesting that this was simply for formal purposes connected with the law suit. But much more was underway. The application was handled personally by the Canadian Consul General in Seattle. Bridget, the former rejectee, was given permanent residency. Even the standard interview was waived. Canada was prepared to buy off this challenge to the status quo. In January, 1992, Canada threatened to deport Anna Carrott, who had been living with the Canadian Andrea Underwood for eight years. Significant publicity and public protest lead the Minister of Immigration to issue a temporary Minister's permit, allowing Anna Carrott to remain in Canada until her court challenge to Canadian immigration laws had been resolved. This was a highly unusual move, indicating legal and political concern with the issues of lesbian and gay spousal sponsorship. For some reason the system was not prepared to buy off this second challenge. Early in 1993 both an independent application by Anna Carrott and a "spousal" sponsorship application made by Underwood were refused (involving, as well, a refusal to apply "humanitarian" grounds). The matter is going to the Immigration Appeal Board and form there will go to Federal Court where the constitutional challenge to Canada's immigration laws can be heard. In May, 1992, LEGIT submitted a brief to the Honourable Bernard Valcourt, the Minister of Immigration. The Brief, *"Growing Old Together"*, told the stories of seven couples whose relationships were threatened by Canada's discriminatory immigration laws. The brief described the immigration laws in Australia, New Zealand, Denmark, the Netherlands, Sweden and Norway, each of which recognize sponsorship rights for lesbians and gay men. A second document was prepared giving more detailed information on the laws in those countries. The work was apparently in vain. Bernard Valcourt, then Minister of Employment and Immigration, refused to meet with the representatives of the Lesbian and Gay Immigration Task-Force. LEGIT had planned to meet with the Minister to present the brief. Instead it had to be delivered to his office without any meeting. The Minister never replied to the brief. The Minister never acknowledged receipt of the brief. In July, 1992, LEGIT received a letter from the Minister's office, replying to a letter of February 20th, 1992, about the Carrott and Underwood case. The letter said that all federal statutes were under review on the question of the use of terms like "spouse". The review was supposed to be completed by June 1993. The letter from the Minister's office also argued that the provisions of the immigration laws were not discriminatory because (a) they favoured married spouses "a distinction in favour of a group, not against a group", and (b) legal marriage was necessary to "verify the authenticity of spousal relationship", while acknowledging that legal marriage was often insufficient proof of the authenticity of a relationship. These justifications for the status quo were indefensible. In December, 1992, LEGIT prepared a six page document to advise individuals on how to file complaints under the *Canadian Human Rights Act*. That document *"The Canadian Human Rights Act and Discrimination Against Same-Sex Couples in Canadian Immigration Law: What To Do"* contained the July letter from the Minister's office and a copy of an internal memorandum from Immigration Canada indicating how same-sex sponsorship applications were to be handled (and eventually refused). At least twenty such complaints have been made to the Canadian Human Rights Commission. In the summer of 1993 all the complaints, from all parts of Canada, were taken over by the Ottawa office of the Canadian Human Rights Commission, to ensure co-ordinated handling of all the same-sex benefits complaints. In November, 1992, seven members of LEGIT who lived in her constituency met with Kim Campbell, the Minister of Justice. She said that she recognized that the issue was a "humanitarian" issue and that it fit with the existing immigration policies on "family reunification". She promised to discuss the issue with Bernard Valcourt, still Minister of Immigration. Highly placed civil servants in Immigration Canada acknowledged that there were problems with the status quo and found LEGITs information on immigration laws in other jurisdictions of great assistance. In May of 1993 LEGIT was asked to provide additional information on the Australian approach. The result was a document *"Regulations for Same-Sex Sponsorship; Looking at the Australian Model"*, prepared with the assistance of the Australian Gay and Lesbian Immigration Task Force. THE NEW IMMIGRATION LEGISLATION In February, 1993, sweeping amendments to the Immigration Act came into force. There was no change in the family class sponsorship provisions. The definition of "spouse" in section 2 (1) of the regulations remained limited to married heterosexuals. Section 114 (2) of the Act, repeating earlier provisions, permitted the waiver of regular criteria in cases where admission "should be facilitated owing to the existence of compassionate and humanitarian considerations." Something else happened. Decision making on humanitarian and compassionate grounds was decentralized to program managers in visa offices outside of Canada, in addition to certain immigration officials in Canada. Earlier such cases had to be filed in Canada and approved by the Minister. There had been few victories under the earlier laws. Kathy and Carla, whose story had been told in the brief *"Growing Old Together"*, had won their case on compassionate and humanitarian grounds, but only after long delays and a mountain of evidence on the fifteen years they had lived together. In spite of their solid case and in spite of the fact that Carla was a strong candidate in her own right, holding a Doctorate from U.B.C., their lawyer was informed that the decision to grant Carla residency had been wrongly made, but Ottawa was not going to over-rule the decision of the local immigration officer. Even this victory in a very, very strong case was linked with a paranoid fear in the Ottawa bureaucracy of establishing any kind of a precedent. But now decision making is with local program officers. The responsibility to decide is no longer in Ottawa. The Minister is no longer responsible. The crucial decisions are made by local officials exercising a statutory discretion. At the November, 1992, meeting with Kim Campbell, Allan, a LEGIT member, gave a personal letter to Campbell setting out his situation and asking for her assistance. Campbell forwarded the letter to Bernard Valcourt. On April 2, 1993, an immigration official responded to Allan on behalf of Minister Valcourt. The letter repeated some of the standard paragraphs that had been in dozens of letters from the Minister's office, including the one received by LEGIT in July, 1992. After the routine negative statements, the letter continued: As you may know, the Immigration Act gives to visa officers outside Canada the sole authrity [sic] to issue immigrant visas. Visa officers, who are well trained in the assessment of applications and the requirements of the immigration legislation and policy, are expected to assess each case on its own merit having regard to all humanitarian concerns. While there is no guarantee that an application would be successful, I can assure you that visa officials would extend every consideration. The message was clear. Have your partner apply again. There could be a favourable ruling on humanitarian grounds. The partner applied again, and the application is in the final stages of approval. WHAT IS CURRENT CANADIAN LAW? Current Canadian law permits program managers in embassies to grant immigrant visas to same-sex partners of Canadians on compassionate and humanitarian grounds. The discretion is with the program manager, though the process will be largely handled by a visa officer. There are no rules telling applicants when the discretion might be exercised in their favour. In any realistic sense there is no appeal from such a discretionary decision. Discussions with immigration lawyers in various parts of Canada who have handled humanitarian applications involving same-sex partners uniformly confirm that such applications are being approved. Sometimes the non-Canadian partner is granted permanent residency as an individual applicant. Sometimes the normal "points" system is waived (as it can be) and the application is granted on "compassionate and humanitarian considerations." We are aware of no refusals of applications made outside Canada, other than that of Anna Carrott and Andrea Underwood, made in Atlanta and which took place under the old *Immigration Act*. Applicants filing their documents within Canada have an additional burden of proving sufficient hardship in their cases to justify the waiver of the normal rule that such applications must be made outside the country. All this means that Canadian law has changed in fact, though the immigration legislation and regulations do not indicate any change. We welcome this change. Many individuals whose lives were being torn apart by Canadian immigration laws are able to live together free from fear, free to love. In the words of the 1992 LEGIT brief, they can get on with their dream of "Growing Old Together". But Canada has merely caught up to where Australia was ten years ago - a "closet" system of recognizing lesbian and gay relationships. The present Canadian system does not use the word "lesbian". It does not use the word "gay". It does not mention "homosexuals". It does not refer to "same-sex relationships". It does not use the inventive Australian phrase of relationships of "emotional interdependency." Canada's current closet words are "compassionate and humanitarian considerations." We have invented a Canadian version of President Clinton's reviled "Don't ask, don't tell" military policy. Ottawa does not want to be told what is going on. But it is Ottawa that has allowed the immigration of same-sex partners. It is lesbians and gays who have to ask and have to tell - who have to put their relationships on the line, without any guarantees that they will gain the respect they are entitled to under the _Charter of Rights and Freedoms_. Canada now allows the immigration of same-sex partners, but under the worst possible set of procedures. There are no rules. There are no appeals. There are no rights. There is no assurance of consistency of decision making by the program managers and visa officers in the various embassies and consulates. There is no openness, no transparency, no publicity. If someone goes to an embassy or consulate in Paris or Atlanta are they likely to get accurate information about the possibilities of a Canadian sponsoring their lesbian or gay partner? Or will they get a standard form document which indicates that they do no qualify for family class sponsorship; a document which explains nothing about what can occur on "humanitarian" grounds. THE LAW HAS CHANGED - LET'S CHANGE THE LAW The time has come to confirm the change that has already occured [sic] in practice. It is time to expressly recognize the rights of Canadian lesbians and gay men to sponsor their partners. It is time to establish some rules, some criteria, just as other countries have done. It is time to catch up to Australia, New Zealand, Denmark, the Netherlands, Sweden and Norway. Canadian politicians often say they want Parliament and elected officials to handle law reform. With same-sex spousal immigration we have a curious situation. The politicians have done a "closet" reform. They risk being forced to come out of their closet by the courts (in the Carrott and Underwood case) or by decisions under the *Canadian Human Rights Act* in the twenty or so complaints that have already been filed against Immigration Canada. The new federal government is commited [sic] to adding "sexual orientation" to the *Canadian Human Rights Act*. That only makes it clearer that the immigration issue will have to be faced. All the changes that are necessary can be done by the Cabinet, by order-in-council. All that is necessary is that the discriminatory definition of "spouse" and "dependent" in the *Immigration Regulations* be changed. Officials in Immigration Canada have done the research on the Australian model. They know what needs to be done. Do it! Bring lesbian and gay family reunification out of the closet. Christine Morrissey, Female Co-Chair, LEGIT, 1576 E 26th, Vancouver, B.C., V5N 2V9 Tel: (604) 877-7768 Fax: (604) 683-3425 Douglas Sanders, Male Co-Chair, LEGIT, 2214 Cypress, Vancouver, B.C., V6J 3M5 Tel: (604) 822-2335 Fax: (604) 822-8108