Lesbian & Gay Immigration Task Force Immigration Guidelines for Lesbian and Gay Couples May 19, 1992 Unlike some other countries, Canada does not recognise same-sex relationships for purposes of immigration. If you are Canadian and have a same-sex partner from another country, there is at present no formal way you can sponsor your partner's immigration to Canada. The Lesbian & Gay Immigration Task-force (L&GIT) was formed in Vancouver in December 1991 to provide support for couples involved in immigration problems and to lobby the government to amend immigration law so as to allow committed partners to remain together in Canada. At present, if your relationship is the only basis for your coming to Canada, you will have to resort to a permanent resident application based on Humanitarian and Compassionate grounds (H & C application). To help couples do this, we have produced a guide based on the personal experiences of members of the Task-force and immigration policy at the time of writing. Due to this and the discretionary nature of the H & C appliaction, there is no guarantee that following these instructions will lead to a successful application. A lot will depend on your particular circumstances and the way you present them to immigration. _The_Independent_ Those who have tried recently to immigrate to Canada as independents will know that Canada Immigration is extremely restrictive. Those who may qualify are _self-employed_professionals_, _investors__and__entrepreneurs__with__at_least_$150,000_ cash. People whose occupation falls into a small number of _occupations_listed_as_ _a_skill_shortage_may_also_be_admitted_. Barring these, the most likely way to enter as an independent would be through a _permanent_offer_of_employment_. The employer must petition the Foreign Workers Unit of Employment & Immigration Canada to obtain approval for a permanent offer of employment. Generally the employment approval will only be issued if the employer can satisfy Employment Canada that no qualified Canadian or landed immigrant is available. Although the employer may offer permanent employment, it is at Canada Employment's discretion whether to grant approval and whether to grant permanent or temporary approval for the offer. If it gives a temporary approval you will be able to obtain only a temporary work authorisation and not permanent residence. Canada Employment usually insists that the employer continue to seek a qualified Canadian for the position and thus persistently provides only temporary approvals for job offers. _Only__with__the__approval_from_Canada_Employment_for_a_permanent_ _offer__of_employment_may_the_applicant_apply_for_permanent_residence_ _as__an__independent_. This application is based on the point system, and while you may have an approved job offer, you may still be declined due to lack of points. The application must be made from outside of Canada. Without an approved job offer, it is unlikely you will pass the initial questionnaire stage of the independent application and thus will not receive the necessary permanent resident application forms. Nonetheless, before proceeding with an H & C application, you should _submit___the___Immigration___Preliminary__Questionnaire_ that can be obtained by phoning or writing to a Canada Consulate General's office. You should list your Canadian partner as your "same-sex partner" (see next section). Keep a copy of this questionnaire to attach to the response you receive. The Consulate office neither retains a copy nor returns your original when they respond. There are other immigration categories, some of which include Assisted Relative, Refugee, Military Service Desertion, US Free Trade claims. Before proceeding with an H & C claim you should investigate any category that may be applicable to you and attempt an application if appropriate. _Spousal_Sponsorship_ In order to apply on Humanitarian and Compassionate grounds, you need to show that all attempts to apply by regular means have been unsuccessful and that there is nothing in the immigration act that allows a Canadian to sponsor you as a same-sex partner. You need to establish and document these claims in order to make an H & C application. To do this, it is recommended that you proceed with a regular spousal sponsorship application, although at present it is probable that your application will be returned. Some of your claims to H & C consideration can be derived from Canada Immigration's refusal to recognise your relationship and denial of the Canadian partner's right to sponsor his/her partner. _Obtain__the__spousal__sponsorship__package_and_have_the_Canadian_ _partner__complete__all__the__forms_. The package can be obtained in person, or by writing or telephoning your local Immigration Centre. The Canadian partner must complete an Undertaking of Assistance, an Evaluation of Guarantor's Financial Status, and provide proof of Canadian citizenship or residence. The Canadian partner must be certain he/she is able and willing to provide financial support, as he/she can later be held responsible for it. At the same time the non-Canadian should prepare a Permanent Resident application to file, should the spousal sponsorship be accepted. This application differs depending on whether you are applying from within Canada or from outside. You will need to decide on a term you are comfortable with to use on the forms instead of "spouse". Choose a term that indicates that the relationship is same-sex and committed, but not necessarily equivalent to spouse. Some examples are "same-sex partner", "same-sex defacto", "lifetime companion", "homosexual/gay/lesbian partner". Submit all these forms together with all the processing fees. You should probably include a cover letter that clearly indicates that the application concerns a same-sex relationship. Immigration currently claims that same-sex relationships do not fall within the category of Spousal Relationship and therefore refuses to process the application. It will probably be returned along with your fees, preventing the Canadian partner from making any appeal to the Appeal Division under Section 77. (If immigration processed the application and denied it, they would be creating an avenue for appeal. However, up until now they avoid this by simply returning the application. The Task-force is currently challenging immigration to reconsider these applications.) _Humanitarian_&_Compassionate_Application_ Having made unsuccessful attempts to immigrate independently and through sponsorship, _the__non-Canadian__may__now__make__a_claim_for_ _Humanitarian__and__Compassionate__consideration__on__the__grounds_of_ _family__dependency_. To make this claim _the_applicant_must_be_in_ _"status",_i.e.__legally_in_Canada_. At this stage, if you are not already using an immigration lawyer, you will probably need one to help put together a submission and present it to immigration. The H & C application is a discretionary application with no avenue for appealing a negative decision. For this reason _you__need__to__present_a_strong_argument_and_be_able_to_ _back_it_up_with_documentation_. The following are some of the arguments you could use: the length of your relationship and the level of committment; your emotional, financial, domestic interdependency; the effect of being separated; inability of both partners to contribute fully to the community; the disturbance to careers, lifestyles, and finances caused by commuting between countries; any persecution or hardships you may face if forced to return to your country of origin; legal arguments claiming discrimination based on marital status and sexual preference (e.g. denial of the right available to heterosexuals to be sponsored by their partners); any other circumstances that apply to you as a couple. As of January 1992, Immigration has formalized H & C application to some extent by the use of pre-printed forms and questionnaires. You may actually be sent a copy of these when your sponsorship application is returned. If not, you should _obtain_a_set_of_forms_ _relating__to__the__H__&__C__application__and__return__them_with_your_ _submission_. The set consists of 3 copies of "Request for Visa Exemption and/or Application for Permanent Residence" and a "Questionnaire" for requesting recommendation to the Governor-in-Council for exemption based on humanitarian and compassionate grounds for situations involving family dependency. You will also need 6 passport photographs, a photocopy of every page of your passport, and fees for the "Order-in-Council" and possibly for the "Permanent Resident" application you are making. Unlike fees connected with the sponsorship program, these fees will not be returned if you are unsuccessful. It is also unlikely that you will be able to appeal a negative decision. Therefore, _make__sure__your_submission_is_complete_and_backed_up_by_documentary_ _proof_. Both partners are likely to be required for interviews and further verification, so be prepared. To avoid delays, you may want to submit your application in person at an immigration centre. This will allow the receiving immigration officer to make an initial check of your application and advise you immediately if there is something incorrect or missing. You will most likely be required to make the payment of fees at this time. _Obtaining_Status_ Because _the__non-Canadian__must_be_in_Canada_to_submit_the_H_&_C_ _application_, he/she must be able to come to Canada and stay until the application has been prepared and submitted. Once the application has been submitted, it should be possible to extend your stay until a decision has been made. This may be in the form of an extension of your current status, or by Immigration issuing you a Minister's Permit. The easiest way to obtain status is as a visitor. You should be able to _obtain__a__visitor's__visa__for__six__months_and_extend_for_ _another__three__months_. If you are an American citizen, a visitor's visa valid for 3 months is issued orally every time you cross into Canada. Canada requires citizens of some countries to obtain a visitor's visa before coming to Canada, while citizens of other countries can obtain a visa at the port of entry. Having a visa does not automatically guarantee you entry. If you have any doubt about being able to obtain a visa at a port of entry, (e.g. you have been previously excluded from Canada) you should obtain a visa before you leave for Canada. If you are refused entry while you are holding a valid visa, you have the right to appeal to the Immigration Appeal Board. Without a visa you could only appeal to the Federal Court of Canada. It must also be stressed that unless you also obtain work authorisation, _employment_is_prohibited_. An alternative to obtaining a visitor's visa may be to _obtain_a_ _student__visa_. If you want to come to Canada to study, this is ideal. If you do not want to study, a student visa may still offer more flexibility, as it can be extended more readily. You may also be able to obtain a temporary work authorisation during and/or at the end of your studies. However, in order to obtain a student visa you must first be admitted to a recognised educational institution and be able to prove that you can support yourself and pay tuition. You will also have to show progress in order to stay enrolled. _Conclusion_ The Humanitarian & Compassionate application is a last resort application available to anyone who can prove that they have good reason for being allowed immigrate [sic] to Canada, but cannot apply on any other grounds. As a result, it is at Immigration's discretion to approve the application and this will depend heavily on your circumstances. The application must be made while you are legally in Canada. The Task-force is lobbying the government for changes to immigration regulations. Until changes are made that recognise same-sex relationships, the H & C application is about your best chance. The Task-force will endeavour to keep the information herein up-to-date as new events arise and immigration policy changes. Part of the Task-force's strategy is to involve as many people as possible in this issue. The Task-force has agreed to establish a support network and urges couples to confront immigration and make applications based on their same-sex relationship. For more information contant the Task-force at the address below. ---------------------------------------------------------------------- _Sources_ Immigrating to Canada - Garl L. Segal - International Self-Counsel Press Ltd - October 1990. _Contact_ The Lesbian & Gay Immigration Task-force PO Box 384, Station A, Vancouver BC, V6C 2N2.