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Gay Marriage and Immigration to Canada
Canada became the first country in North America to legalize same sex marriages across the nation and only the fourth in the world when it passed the Civil Marriage Act in July 20, 2005. This Act provided a gender-neutral marriage definition which resulted in same-sex marriages being legally recognized nationwide in Canada. Even before 2005, the courts in various provinces and territories of Canada were gradually moving to recognize same-sex marriages. So at the time when the Civil Marriage Act was introduced to the Canadian House of Commons in 2005 February, eight out of ten provinces and one of three territories in Canada had already legalized same-sex marriages. With the passing of the 2005 Act, one of the direct beneficiaries were gay couples where one of the partners were located overseas and who could hereafter hope to move to Canada to be with the only they loved. Since then Canada has among the countries with the most liberal gay immigration laws.
Immigration on the basis of merit
For bi-national gay couples, there are two primary ways that the alien partner can seek to immigrate to Canada. One is on the basis of his/her own merit which can help him to obtain permanent resident status in the country. In this case, the alien partner has to qualify as a Skilled Worker (Independent), Entrepreneur, Investor or Self-employed. This category is not only used by singles to move to Canada but also by gay couples who wish to live in the country because of its liberal values and laws. In fact a same-sex couple can apply together by submitting one application; however one of the partners has to be the principal applicant who qualifies under one of the categories and his partner can be included as the common-law partner in the same application.
Immigration on the basis of partner sponsorship
The second way of immigrating to Canada for a gay partner is to apply under Family Class and be sponsored by a Canadian citizen on the basis of marriage, common-law or conjugal relationship. Common-law partners are similar to domestic partners and are defined as life partners who have been living together for at least one year. If an alien gay partner has been living together with a Canadian partner continuously for at least one year, then the latter can sponsor the former as his common-law partner. A conjugal partner is like a common-law/domestic partner but no cohabitation is required. Conjugal partners can be a couple who maintain the life partner form of relationship for at least one year but are unable to live together. The separation may be due to visa requirements or restrictions, or fear of prosecution of homosexuality, common in some countries. This is especially helpful for couples who have been living apart due to social and legal restrictions again homosexuality and now want to move to Canada to live in a liberal environment.
In the process of immigration of gay spouses or partners to Canada, a lot of importance is given to documents proving the genuine nature of the relationship. Among the documents that can serve as good evidence are marriage certificate, domestic partnership registration, joint house ownership/apartment lease, joint mortgage statement, joint bank account statement, joint credit card statement, joint phone and utility bills, joint recreational memberships, joint health insurance, life insurance, Will, Power of Attorney, pictures, letters from family and friends stating the relationship, proof of taking trips together such as boarding passes, phone records, emails and so on. Since each and every relationship is unique and different, the applicant may not have to provide everything that is listed above, but he may have other documents that are equally appropriate for documenting your relationship.
There are two separate procedures that a gay foreign partner can use to immigrate to Canada to be with his Canadian partner. The first is the off-shore – or Outside Canada - Application according to which a gay partner staying outside Canada can apply to immigrate to Canada. The advantage with this is that if the application is denied, his Canadian partner has a right to appeal with the IAD or Immigration Appeal Division.
In case of on-shore application – known as In Canada Application - a gay couple living in Canada can apply for the alien’s legal immigration. The advantage of this option is that it allows an applicant to stay in Canada by renewing his temporary status. In Canada Application also allows an applicant to apply for a work and/or study permit in the middle of the application process but this is usually after 5-6 months. However the main drawback with this process is that upon rejection by immigration officials, there is no recourse of appeal.
If an alien gay partner who has applied for immigration to Canada, turns out to be HIV positive, he can still qualify as long as he is a spouse, common-law, conjugal partner or dependent child of a Canadian citizen/permanent resident and are applying under Family Class.
However if the applicant has sought to immigrate under non-Family Class categories - such as Skilled Worker, Entrepreneur, Investor, and Self-employed – and turns out to be HIV positive, then his application has a high chance of being disqualified. The final result will depend on the extent of the infection. For instance If the applicant is on an anti-retroviral medication, he is most likely considered to be medically inadmissible on grounds of causing excessive demand on health or social services. If the applicant is not on any medication, he might be able to pass the medical exam. There is no way to predict the medical exam results unless the applicant takes the medical exam. Since every body is unique, every case of HIV positive physiology would also be different. It is up to the medical officers from CIC (Citizenship and Immigration Canada) to determine if the applicant is medically admissible to Canada.
Canada has some of the most advanced LGBT laws in the world. It has not only made same-sex marriages legal across the country but also extends immigration benefits from gay spouses to alien gay partners in common-law and conjugal relationships as well.