EGALE welcomes the opportunity to provide comments on Bill C-11, with a view to reforming and enhancing Canada’s immigration laws and policies.
EGALE takes an interest in Canadian immigration legislation and policy because lesbians, gays, bisexuals and transgendered people are truly everywhere: not only throughout Canada but also throughout the world. As Canadians we establish intimate long-term relationships with non-Canadians, as citizens of other countries we seek admission to Canada based on our relationships with Canadians, our fields of study or employment, or because of persecution based on our sexual orientation or gender identity. Lesbians, gays, bisexuals and transgendered people have benefited from Canada’s immigration laws and policies but we are also currently denied the equal enjoyment of that benefit, because of our sexual orientation.
We have chosen to focus on three areas of particular relevance to lesbians, gays, bisexuals and transgendered people:
Recognizing same-sex relationships within the family class;
Protection of people fleeing persecution based on sexual orientation or gender identity;
Medical inadmissibility, particularly in relation to issues surrounding HIV/AIDS.
Part II of this brief describes EGALE and its work, Part III provides detailed feedback on the proposed regulations, and Part IV concludes with a Summary of Recommendations for change.
EGALE is a national organization committed to advancing equality and justice for lesbians, gays, bisexuals and transgendered people at the federal level in Canada. EGALE has members in every province and territory of Canada.
EGALE has been active over the years in participating in both government and community consultations on immigration issues, including presenting written and oral submissions to the Immigration Legislative Review Ministerial Consultations in March, 1998. We maintain active collaborations with other groups working on these issues, most notably LEGIT (the Lesbian and Gay Immigration Task Force).
EGALE has also been involved in extensive public education and international activities. EGALE participates in annual consultations sponsored by the Department of Foreign Affairs and International Trade, and EGALE representatives have attended the United Nations World Conference on Human Rights in Vienna, the United Nations World Conference on Women in Beijing, the International Year of the Family Conference in Montreal and the recent World Conference on Women in New York. EGALE is a member of the International Lesbian and Gay Association.
EGALE has appeared before numerous Parliamentary Committees and Canadian Courts. In particular, EGALE was extensively involved in supporting Bill C-23, the Modernization of Benefits and Obligations Act, and appeared before the Supreme Court of Canada in the landmark M v. H case, in which the Supreme Court ruled that the failure to recognize same-sex relationships equally is unconstitutional.
EGALE has testified before the Senate Constitutional and Legal Affairs Committee, the Joint Parliamentary Committee on Custody and Divorce, the House of Commons Committees on Justice and Human Rights, Human Resources Development, and the Sub-Committee on Tax Equity for Families with Dependent Children. EGALE has participated in Statistics Canada consultations concerning the 2001 census, appeared before the Canadian Radio-Television Telecommunications Commission and participated in a public consultation conducted by the Royal Commission on New Reproductive Technologies.
In addition to the M v. H decision, EGALE has intervened before the Courts in the cases of Egan v. Canada, Mossop v. Canada, Vriend v. Alberta, CUPE & Rosenberg v. Canada, Little Sisters Book and Art Emporium v. Canada Customs, Chamberlain et al v. Surrey School Board, Re Hurley and B.C. College of Teachers v. Trinity Western University. EGALE is currently involved in a Charter challenge to the denial to same-sex couples of the right to marry. EGALE representatives have also provided expert testimony before Canadian tribunals dealing with issues of equality for same-sex couples.
EGALE strongly supports the proposal in clause 12(2) of Bill C-11 to recognize same-sex relationships directly within the family class.
In practice, same-sex partners have been granted landed status based on humanitarian and compassionate grounds for many years. As the Department of Citizenship and Immigration has recognized in previous reports, processing same-sex applications on humanitarian and compassionate grounds lacks transparency, and can result in arbitrariness and inconsistency.
Expanding the family class to include those in same-sex relationships accords with current practice, the requirements of the Charter of Rights and of Supreme Court judgments, public opinion and the principles established last year by the federal government in the Modernization of Benefits and Obligations Act.
EGALE is pleased to welcome this change.
While EGALE understands that Bill C-11 is intended to provide a general legislative framework for the regulations, a core concept such as who has access under the family class should be defined in the Act itself, rather than in the regulations. We therefore feel that the term “common law partner” in Bill C-11 should be replaced by the phrase “common law partner (same-sex or opposite-sex)”. The reasons for this recommendation are:
(a) The Immigration Act should identify the basic grounds upon which an application can be made. This is consistent with the concept of framework legislation. Subsidiary matters, such as identifying the criteria for a qualifying relationship, can appropriately be left to the regulations;
(b) The principle of transparency requires that applicants be aware of their legal entitlement. A valuable precedent has been established by Statistics Canada in the 2001 Census which, for the first time, will ask questions about same-sex relationship status. In identifying their relationships, Canadians will be provided with the following options:
Common-law partner (opposite sex);
Common-law partner (same sex);
This wording is based on extensive focus-group testing conducted by Statistics Canada. Statistics Canada found that not everyone realized that same-sex relationships were covered by the phrase “common-law partner”, and that specifying “same-sex or opposite-sex” maintained consistency with the terminology used in the Modernization of Benefits and Obligations Act, while increasing accuracy of results and transparency;
(c) Considerations of accessibility and transparency are particularly relevant in the immigration context where the principles of the legislation need to be clear to people seeking information in foreign jurisdictions. Currently, EGALE receives many calls from gays and lesbians in qualifying relationships who are not aware of their ability to make a claim on humanitarian and compassionate grounds. In many countries, same-sex couples are accorded no legal status, are not protected from discrimination and are even, in some cases, subject to criminal sanctions. The natural assumption of those applying from these countries will be that the term “common law partner” is restricted to opposite-sex common law couples, particularly when nothing in the legislation suggests otherwise;
(d) EGALE recognizes that the current government and administration are willing to affirm their constitutional responsibility to provide equality for same-sex families. It cannot be assumed, however, that future governments will be as supportive as this one. Enshrining the new provisions in the legislation itself will help to ensure that key concepts such as who qualifies under the family class are not subject to the vagaries of political change. Changing such a core concept should require a vote in Parliament, rather than a simple regulatory change.
EGALE would also encourage the Department to produce public education materials upon passage of the legislation, to inform applicants of their right to sponsor a same-sex or opposite-sex common-law partner under the family class, and to help train visa officers in implementing the new regulations.
Recommendations:
That the phrase “common-law partner” in clause 12(2) of Bill C-11 be replaced by the phrase “common-law partner (same-sex or opposite-sex)”;
That the Committee urge the Department to produce public education materials upon passage of the legislation, to inform applicants of their right to sponsor a same-sex or opposite-sex common-law partner under the family class, and to help train visa officers in implementing the new regulations.
EGALE recognizes that the precise language of the regulations is not directly within the ambit of this Committee. Where the regulations will address issues central to the content—and even the constitutionality—of the immigration regime, however, we would urge the Committee to make recommendations which may assist in guiding the efforts of those developing the regulations.
EGALE’s primary concern is with the proposed definition of “common-law partner” as “a person who is cohabiting in a conjugal relationship with another person, having so cohabited for a period of at least one year.”
EGALE strongly believes that it is inappropriate in the immigration context to treat cohabitation as a prerequisite for a qualifying relationship.
In practice, couples in bona fide relationships may not cohabit for a wide variety of reasons, including discrimination, cultural, social and financial factors. The most common scenario will be same-sex partners who are unable to live together due to visa restrictions or their immigration status. Couples will be in a cruel Catch-22 position if they are separated by immigration difficulties and thereby precluded from fulfilling the one prerequisite they need to overcome their immigration difficulties. Many of these couples are currently admitted to Canada on humanitarian and compassionate grounds and, ironically, would be worse off under a regime where they are disqualified from the family class.
Even those couples able to live in the same country may not cohabit for straightforward and legitimate reasons, such as the need for one partner to study in a different city, to work elsewhere or to attend language training in a different part of the country. It would be wholly unjust if couples maintain a bona fide relationship and take every opportunity to spend weekends and other time together, but are precluded from meeting the requirements of the family class by unreasonably high prerequisites.
We recognize that the proposed regulations make some provision for an individual who has “been in a conjugal relationship with a person for at least one year”, but has been unable to cohabit “due to exceptional reasons such as persecution or any form of penal control”. We welcome this as a recognition that some lesbians, gays, bisexuals and transgendered people live in countries where they are unable to cohabit for fear of persecution, but this proposal appears to set a very high threshold and does not cover a variety of other situations in which people in genuine relationships do not cohabit.
Instead, the goal should be to identify bona fide relationships, and it should be sufficient to define a common-law partner as someone who has “maintained a conjugal relationship with another person for a period of one year.” The submission of written materials documenting the legitimacy of the relationship has worked well for the past 7 years without any real practical difficulties based on fraud. In practice, couples maintaining a bona fide long-distance relationship frequently have ample evidence in the form of photographs, letters, testimonials, phone bills, proof of visits etc to support the bona fides of the relationship.
The proposed regulations will create a hierarchy of relationships, irrespective of the bona fides of the relationship. Married opposite-sex spouses and those who are engaged to be married automatically qualify under the family class without needing to satisfy any cohabitation requirement. By contrast, same-sex couples, with no current capacity to marry or become engaged, will be denied access to the family class irrespective of the bona fides or duration of their relationship, unless they can meet a cohabitation requirement or meet the high threshold for inability to cohabit.
As a result, cohabitation is not a prerequisite for all opposite-sex couples, and may be unattainable by many same-sex couples due to practical, financial, social or other reasons. There seems to be little constitutional or policy justification for distinguishing between different classes of relationship, each of which is equally genuine. In EGALE’s view, the proposed hierarchy of relationships would invite a challenge under the Charter of Rights.
In addition, there is no provision for couples who have a formal legal status in another country. Following a successful constitutional challenge in Vermont, for example, same-sex couples can enter into civil unions as a legal equivalent to marriage. Many European countries make provision for same-sex couples to legally register their relationship. There is no justification for differentiating between these legal relationships and a heterosexual married couple.
Nor is it clear what constitutes one-year’s cohabitation. Given that many couples are separated by immigration restrictions, is it sufficient for the partners to visit each other in their respective home countries for extended periods within a one-year time-frame? Must they actually be domiciled together in one country? How much time apart can they spend before they are deemed to be no longer cohabiting?
These are questions a married or engaged heterosexual couple will not need to address. The same criteria should apply to all couples, whether married or unmarried, heterosexual or same-sex. Heterosexual fiancé(e)s are not required to cohabit or maintain a relationship for a specific duration. Equality requires that any provisions available to opposite-sex couples be available to same-sex couples.
Recommendations:
EGALE urges the Committee to recommend that, in developing regulations:
the one-year cohabitation requirement be removed, and a common-law partner be defined to include a person who has maintained a bona fide conjugal relationship with another person for a period of one year;
the duration of the relationship be calculated at the date of the decision rather than the date of the application, to give applicants credit for the often lengthy delays in processing;
if the cohabitation requirement is retained, the threshold of the exemption for couples unable to live together be at least be broad enough to cover couples separated by reason of immigration;
care be taken to ensure that every provision applicable to opposite-sex “spouses” and fiancé(e)s is equally available to “common-law partners.”
In the overview of proposed regulations prepared in relation to former Bill C-31, it was clear that “adoption-like cases” falling short of full adoption would fall within the family class. The treatment of adoption and guardianship in the proposed regulations to Bill C-11 appears more restrictive. In many jurisdictions, lesbians, gays, bisexuals or transgendered people have a parental relationship to a child, but neither adoption, guardianship, fostering or custody is available to legalize the relationship in the child’s country of residence, because of a discriminatory legal regime.
Recommendation: That the Committee urge that the regulations be explicit in ensuring that parental relationships are recognized within the family class, whether or not legal adoption, guardianship, fostering or custody is possible in the country of origin.
Whatever criteria are used to identify a qualifying member of the family class, there will always be couples, family members or other individuals who do not fall within the established criteria. EGALE strongly urges the continued use of humanitarian and compassionate grounds to ensure that those who would otherwise fall through the cracks are not unjustly excluded. Currently, clause 65 of Bill C-11 appears inconsistent with this principle.
Recommendation: That the exercise of discretion on humanitarian and compassionate grounds continue to be available on a case-by-case basis to accommodate those with legitimate claims who do not meet whatever criteria are established under the family class.
EGALE welcomes the proposed reduction of the duration of spousal sponsorship from 10 years to 3 years. The current lengthy sponsorship duration impacts disproportionately upon women and increases dependency and subordination.
Recommendation: EGALE supports the proposal to reduce the duration of the spousal sponsorship requirement and further urges that there be provision for leniency to be shown in the event of default due to changed circumstances, such as loss of employment, illness, death of a family member etc.
EGALE cannot support the proposal that persons in receipt of social assistance will be prohibited from sponsoring their partner, dependent children or other family-members. In our view, this would fundamentally undermine the integrity of the family class by preventing families from being together on the basis of economic status.
Recommendation: That there be no sponsorship bar for persons in receipt of social assistance.
Although EGALE is not specifically a refugee support organization, we are well aware of the plight of people around the world who are targeted for persecution and harm based upon their sexual orientation. In Iran, lesbians, gays and bisexuals face the death penalty by stoning or hanging, in Romania we are imprisoned, in China we are sent to labour camps. Transsexuals and transgendered people remain among the most persecuted groups in society.
While other countries struggle with the question of whether people fleeing persecution based on sexual orientation are entitled to protection under the international Convention relating to the Status of Refugees, the Canadian Immigration and Refugee Board began recognizing these claims in 1992. This approach was explicitly confirmed by the Supreme Court of Canada in 1993 in the case of Canada v. Ward [1993] 2 S.C.R. 689. The reasoning in that case is equally applicable to transsexuals or transgendered people.
EGALE believes that people fleeing persecution or other harm based upon their sexual orientation or gender identity are among the most vulnerable refugees for the following reasons:
the Convention refugee definition does not enumerate sexual orientation or gender identity as a separate ground for recognizing refugee status and therefore the person fleeing persecution may not be aware of his or her right to claim refugee status based on these grounds;
lesbians, gays, bisexuals and transgendered people from countries with a climate of persecution or strong social taboos are reluctant to disclose their sexual orientation or gender identity, particularly to authority figures from a foreign country; further they may not know that the refugee protection process in Canada is confidential and information regarding their sexual orientation or gender identity will not be made public;
due to the fact that homophobia and transphobia transcend national boundaries, there is a dearth of information regarding the treatment of lesbians, gays, bisexuals and transgendered people and therefore claims based on sexual orientation or gender identity may be difficult to substantiate by documentary evidence;
it may be difficult for lesbian, gay, bisexual or transgendered refugee claimants to find sources of support within Canada during the refugee protection process because they are estranged from their national communities or must maintain secrecy within their communities; further, due to cultural differences, there may be obstacles to connecting with the lesbian, gay, bisexual or transgendered communities in Canada.
There are therefore significant obstacles faced by people who need Canada’s protection from persecution or other harm based on their sexual orientation or gender identity. EGALE is concerned that barriers to protection within Bill C-11 will compound barriers which already exist for people fleeing their countries through fears of harm based on their sexual orientation or gender identity. Specifically:
(a) stopping people from fleeing to Canada
Bill C-31, the predecessor to Bill C-11, was announced together with plans to reinforce measures such as stationing more immigration officers abroad in order to stop "undocumented persons" from seeking entry into Canada. The Background paper states that refugees will be directed to "appropriate missions or international organizations." Given the few countries or authorities which recognize claims based upon sexual orientation, a person fleeing harm based on sexual orientation may have very good reasons for wanting to reach Canada. There must be some assurance that if a person fleeing harm based on their sexual orientation is prevented from access to Canada, he or she is directed to a country or authority which recognizes claims based upon sexual orientation. Similarly, there may be virtually no country or authority recognizing claims based on gender identity to which transgendered people can be redirected.
Recommendation: that if people fleeing persecution based upon sexual orientation or gender identity are prevented from reaching Canada, they are directed to an authority or country which recognizes claims based on that ground.
(b) ineligibility based on Convention Refugee status in another country
Clause 101(1)(d) of Bill C-11 makes a person ineligible from advancing a refugee claim if he or she has been recognized as a Convention refugee in another country. What if a lesbian obtains Convention refugee status in another country on grounds other than sexual orientation, but then experiences persecution based on her homosexuality in the country of asylum? Under this provision she would be denied the right to make a claim based upon sexual orientation in Canada. EGALE believes there must remain an ability to advance a refugee claim against countries which have previously granted asylum.
Recommendation: that there remain an ability to advance a refugee claim based on sexual orientation or gender identity in Canada against countries which have previously granted asylum.
(c) ineligibility based on travel through a country which "complies" with the Refugee Convention
Clauses 101 and 102 provide that a person is ineligible to advance a claim for refugee protection if he or she travelled through a country which complies with the Refugee Convention. Clause 102(2) provides for the designation of countries that "comply" with the Refugee Convention.
Where people fleeing persecution based on sexual orientation or gender identity are concerned, what countries would be considered to comply with the Refugee Convention? As mentioned above, it is well established in Canadian law that people fleeing persecution based on their sexual orientation are entitled to claim refugee status based on their "membership in a particular social group." In other countries, including many European countries, this is not the case. In the United Kingdom, for example, there is a strong line of authority from the Immigration Appeal Tribunal holding that homosexuals as a social group are not entitled to advance a claim for refugee status. In Germany, several decisions have held that claims for asylum based on homosexuality can only be successful if the "non-reversibility" of the claimant’s sexual orientation is demonstrated. In addition, it is extremely unlikely that transgendered people would have any protection in these countries.
EGALE is concerned that countries like the United Kingdom and Germany would be designated on a list of countries that "comply" with the Refugee Convention, regardless of the fact that people fleeing persecution based upon their sexual orientation or gender identity would not find protection there. Returning lesbians, gays, bisexuals and transgendered people to these countries would be tantamount to returning them to countries where they are at risk of persecution, and this is in violation of Canada’s international obligations.
Recommendation: that clause 102(2)(b) be amended to provide for consideration of the third country’s application of the Convention refugee definition, as well as the practices and policies with respect to claims under the Convention.
(d) restricted opportunity to present evidence of fears based upon sexual orientation or gender identity
For the reasons described above, it is often difficult for people fleeing persecution based upon their sexual orientation or gender identity to reveal the true nature of their fears, particularly within the rigid timelines of the refugee determination process. Lack of knowledge of the confidentiality of the refugee process and internalized fears from a person’s country of origin are among the factors that make it difficult for a person to acknowledge their sexual orientation or gender identity, even though they have arrived in Canada. With greater exposure to Canada’s more accepting and diverse society, some of these internalised fears may be gradually overcome, but overcoming the constraints resulting from living in a repressive environment is a difficult process, and one which takes time.
The Bill makes no adequate provision for this evidence, which is not strictly speaking "new" but was not previously presented for compelling reasons. There is no provision to allow a person to reopen their claim based on evidence not previously considered (such as his or her sexual orientation or gender identity) if their claim was rejected, withdrawn, or abandoned. In an appeal from a rejected decision, clause 110(3) restricts the Refugee Appeal Division to evidence which was before the Refugee Protection Division. The Pre-Removal Risk Assessment is restricted to "new evidence that arose after, or was not reasonably available at the time of rejection." These restrictions on the presentation of evidence ignore the obstacles faced by people advancing claims based on their sexual orientation or gender identity.
Example: A, a gay man from Bangladesh, arrived in Canada and advanced a refugee claim on political grounds. He did not reveal his fears of persecution based on his sexual orientation because he was dependent on the Canadian Bangladeshi community and his Bangladeshi lawyer for support, and he feared that his sexual orientation would be revealed to his family. His claim was ultimately rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board. The penalty for homosexuality in Bangladesh is up to 7 years imprisonment.
Recommendation: that provision be made for the consideration of evidence of sexual orientation or gender identity which was not previously disclosed in the refugee protection process due to compelling reasons, either through a reopening of a claim, an appeal from a rejected decision before the Refugee Appeal Division or a Pre-Removal Risk Assessment.
(e) weakening of other procedural protections
The weakening of other procedural protections in Bill C-11, such as the reduction of refugee decision-making panels from two members to one, make it critical to ensure that the protection needs of people fleeing harm based on sexual orientation or gender identity are not jeopardized.
Example: CRDD File U97-01326 involved the refugee claim of a gay man from Trinidad, where homosexuality is punishable by 10 years imprisonment. The Presiding member accepted the claim based on evidence on homophobia, police harassment and violence in Trinidad. The dissenting member rejected the claim on the basis that if the claimant were "discreet" about his homosexuality he could avoid repercussions of homophobia. Under a single-member panel system, the claimant would have been denied protection if the dissenting member acted as the sole decision-maker.
Recommendations:
In order to ensure that the protection needs of people fleeing persecution based on sexual orientation or gender identity are not compromised, EGALE makes the following recommendations:
that training programs be implemented for Refugee Protection Division members to help address claims based on sexual orientation or gender identity, and that these programs be delivered by qualified lesbian, gay, bisexual or transgendered instructors knowledgeable in refugee law issues;
that guidelines be developed pursuant to clause 159(1)(h) of the Bill on the processing of claims based on sexual orientation or gender identity;
that timelines for the processing of protection claims be realistic and take into consideration the obstacles faced by those advancing a claim based on sexual orientation or gender identity.
Because many countries do not recognize that lesbians, gays, bisexuals or transgendered people fleeing persecution are entitled to advance a refugee claim, it is important that Canada’s laws dealing with refugees be clear and explicit about which groups are covered.
While “membership in a particular social group” is useful as a general ‘catch-all’ provision, many people seeking asylum from overseas may not be aware of the jurisprudence clarifying that ‘sexual orientation’ is included within this expression. In addition, while the principles underlying the interpretation of this provision would apply equally to transgendered people, it is important that the grounds covered be clearly articulated to avoid inconsistencies in the interpretation and application of the law.
The list of grounds on which refugee status may be claimed are articulated in clauses 3(2)(d) and 96 of Bill C-11.
Recommendation: that clauses 3(2)(d) and 96 of Bill C-11 be amended to add “sexual orientation” and “gender identity” as explicit grounds on which a refugee claim may be advanced.
EGALE is concerned about any proposal, under the Act or its regulations, to require prospective immigrants of any class to submit to mandatory HIV tests.
Under clause 38(1) of Bill C-11, persons can be refused entry into Canada if they suffer from a medical condition which (a) is likely to be a danger to public health or safety, or (b) might reasonably be expected to cause excessive demand on health or social services. Mandatory HIV-testing, and the automatic exclusion of HIV-positive applicants, does not meet either of these tests.
HIV-positive persons do not pose a threat to public health or safety. HIV is not a highly contagious infection, but can only be transmitted through intimate contact. Canadians will not be protected against HIV by Canada erecting an HIV barrier at its borders, but only by instituting and supporting effective public health education programs.
For this reason, Canada has up until now supported the International Guidelines on HIV/AIDS and Human Rights, developed jointly by the United Nations Programme on HIV/AIDS and the United Nations High Commissioner for Human Rights, which state:
“[t]here is no public health rationale for restricting liberty of movement or choice of residence on the ground of HIV status.”
Although HIV and AIDS are extremely serious health conditions, new therapies are being developed on a month-by-month basis. While it is still incurable, most Canadian physicians now consider HIV, for the majority of those infected, to be a manageable, chronic condition. Establishing a sweeping policy of exclusion at this time would be imprudent.
The concern that people with HIV would pose a burden on Canada’s health services is exaggerated and outdated. Unlike the early years of the disease, today people with HIV are living longer, healthier lives. This means more years of productivity, contributing to the Canadian economy through labour skills, taxes, and investment. If people qualify for immigration to Canada based on their contribution to our economy or their significant family ties, it makes no sense to exclude them based on what is increasingly becoming a chronic but manageable disease for many people.
The HIV prevention strategies we use for Canadian residents should be the same for newcomers: clear and culturally acceptable education about the nature of HIV, means of transmission, and how a person can take measures to safeguard their health and the health of others. Mandatory testing simply diverts resources from these proven techniques, while giving us a false sense of security about the risk of transmission. Ultimately, the risk of HIV transmission will depend on the behaviour, rather than the HIV status, of both Canadians and newcomers.
In considering whether some HIV-positive individuals might impose excessive burdens on Canada’s public health and social services programs, we would recommend that such applications continue to be considered on a case-by-case basis, balancing all aspects of an individual application, rather than by instituting a new and sweeping policy of excluding all HIV-positive applicants. Even on a case-by-case approach, visa officers should recognize that some criteria may discriminate on the basis of economic status or country of origin.
The International Guidelines on HIV/AIDS and Human Rights provide guidance in this area as well:
“Where States prohibit people living with HIV/AIDS from longer-term residency due to concerns about economic cost, States should not single out HIV/AIDS, as opposed to comparable conditions, for such treatment, and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency.”
Mandatory exclusion policies would be inconsistent with the individual-based approach required by the International Guidelines.
EGALE acknowledges and supports clause 38(2) of Bill C-11, exempting close members of the family class and refugee claimants from exclusion on the grounds of excessive medical demands. We are, however, concerned by some of the Minister’s public musings that HIV could be considered a public health risk, since this is inconsistent with the evidence and public health grounds are not covered by the exemption in clause 38(2). We would add that there is no justification, based either on public health and safety concerns, nor potential burdens on government services, for denying entry to visitors solely on the basis of their HIV status.
Recommendations:
that the Committee urge that there be no change to current policy regarding HIV testing, which allows for applicants for landed immigrant status to be tested, at the discretion of immigration officers; and which calls for a review of potential burden of HIV-positive immigrants on government health and social service programs on a case-by-case basis;
that neither visitors, family-class members nor refugees be denied entry to Canada solely on the basis of their HIV status.
EGALE is supportive of the move towards providing equality for same-sex couples under the family class. EGALE believes that these changes to Canada’s immigration laws and policies are clearly overdue, given the reality of our relationships, and the legal trend in Canada and internationally.
It will be important to recognize explicitly in Bill C-11 that both same-sex and opposite-sex partners are included within the expression “common-law partner”.
It is, moreover, imperative that realistic criteria be adopted to enable all those in bona fide relationships to qualify on an equal basis, and the proposed cohabitation requirement is of particular concern in this regard.
Moreover, as we strive to make Canada a more just and equitable society for our relationships, EGALE believes that Canada must follow its international legal obligation to provide protection to lesbians, gays, bisexuals and transgendered abroad whose personal security is in jeopardy due to persecution based their sexual orientation or gender identity. A number of recommendations have been made to strengthen refugee protection in this area.
We would further urge the Committee to express its concern that proposals for mandatory testing and exclusion of HIV-positive applicants are inconsistent with International Guidelines, and there is no demonstrated need to depart from a case-by-case consideration model.
A Summary of Recommendations is attached.
EGALE makes all of the recommendations in this brief in the spirit of preserving Canada’s commitment to a fair immigration system founded on values of equality, justice and human rights. We thank the Committee for providing us with an opportunity to express our views on this matter.
EGALE recommends:
That the phrase “common-law partner” in clause 12(2) of Bill C-11 be replaced by the phrase “common-law partner (same-sex or opposite-sex)”;
That the Committee urge the Department to produce public education materials upon passage of the legislation, to inform applicants of their right to sponsor a same-sex or opposite-sex common-law partner under the family class, and to help train visa officers in implementing the new regulations;
That the one-year cohabitation requirement be removed, and a common-law partner be defined to include a person who has maintained a bona fide conjugal relationship with another person for a period of one year;
That the duration of the relationship be calculated at the date of the decision rather than the date of the application, to give applicants credit for the often lengthy delays in processing;
That if the cohabitation requirement is retained, the threshold of the exemption for couples unable to live together be at least be broad enough to cover couples separated by reason of immigration;
That care be taken to ensure that every provision applicable to opposite-sex “spouses” and fiancé(e)s is equally available to “common-law partners”;
That the Committee urge that the regulations be explicit in ensuring that parental relationships are recognized within the family class, whether or not legal adoption, guardianship, fostering or custody is possible in the country of origin;
That the exercise of discretion on humanitarian and compassionate grounds continue to be available on a case-by-case basis to accommodate those with legitimate claims who do not meet whatever criteria are established under the family class;
EGALE supports the proposal to reduce the duration of the spousal sponsorship requirement and further urges that there be provision for leniency to be shown in the event of default due to changed circumstances, such as loss of employment, illness, death of a family member etc;
That there be no sponsorship bar for persons in receipt of social assistance.
EGALE recommends:
That if people fleeing persecution based upon sexual orientation or gender identity are prevented from reaching Canada, they are directed to an authority or country which recognizes claims based on that ground;
That there remain an ability to advance a refugee claim based on sexual orientation or gender identity in Canada against countries which have previously granted asylum;
That clause 102(2)(b) be amended to provide for consideration of the third country’s application of the Convention refugee definition, as well as the practices and policies with respect to claims under the Convention;
That provision be made for the consideration of evidence of sexual orientation or gender identity which was not previously disclosed in the refugee protection process due to compelling reasons, either through a reopening of a claim, an appeal from a rejected decision before the Refugee Appeal Division or a Pre-Removal Risk Assessment;
That training programs be implemented for Refugee Protection Division members to help address claims based on sexual orientation or gender identity, and that these programs be delivered by qualified lesbian, gay, bisexual or transgendered instructors knowledgeable in refugee law issues;
That guidelines be developed pursuant to clause 159(1)(h) of the Bill on the processing of claims based on sexual orientation or gender identity;
That timelines for the processing of protection claims be realistic and take into consideration the obstacles faced by those advancing a claim based on sexual orientation or gender identity;
That clauses 3(2)(d) and 96 of Bill C-11 be amended to add “sexual orientation” and “gender identity” as explicit grounds on which a refugee claim may be advanced;
EGALE recommends:
That the Committee urge that there be no change to current policy regarding HIV testing, which allows for applicants for landed immigrant status to be tested, at the discretion of immigration officers; and which calls for a review of potential burden of HIV-positive immigrants on government health and social service programs on a case-by-case basis;
That neither visitors, family-class members nor refugees be denied entry to Canada solely on the basis of their HIV status.
Egale Canada ©2007