CANADIAN GOVERNMENT TELEX ORD0150
PROCESSING OF SAME-SEX CASES (3 JUNE 1994)

UNCLASSIFIED/NONCLASSIFIE
FROM/DE: EANDIHULL ORD ORD0150 03JUN94
TO: ALL IMMIGRATION MISSIONS HOM AND SOCAFF MANAGERS/TOUTES LES MISSIONS IMMIGRATION CDMS ET GERANTS DU PROG AFFSOC

REF ORD 0149 03JUN94

Processing of same sex and common law cases/traitement des cas concernant des conjoints de meme sexe et de fait

1. Recent telex (ORD0149) reminds missions of background to humanitarian and compassionate (H&C) authority provided under new R.2.1. This telex will discuss options around how to process same sex and common law couples as there appears to be some confusion and inconsistency in application of regulations.
   
2. New federal government has undertaken to conduct review of issue of recognition of same sex relationships across range of government programs and legislations. In the context of wider governmental review the treatment of same sex relationships under the immigration regulations is coming under increasing scrutiny by public, media, courts and interest groups. Likewise failure of immigration to recognize common law relationships is increasingly being questioned.
   
3. The immigration regulations define spouse as someone of the opposite sex to whom an individual is joined in marriage. Due to this definition, FC [Family Class] sponsorship of same sex or common law spouse or inclusion of same sex or common law spouse on independent, refugee or other application is conventionally precluded. These regulations remain law of the land unless they are changed by government or struck down by courts. Nevertheless in spite of definition of spouse, other provisions of regulations including R. 11(3) and R.2.2 may apply to application involving same sex or common law couples.
   
4. In processing applications involving same sex of common law relationship missions should consider each application on its individual merits. Following points are intended to provided guidance to missions to assist them in processing of such cases.
   
5. If mission receives application that has been initiated via an FC sponsorship which involves same sex or common law spouse, mission should review the application and process it under independent regulations as processing under FC not possible. If application has been opened as family class missions should change category to independent (ND2) at selection state. It is not necessary to refuse as FC prior to changing category. Missions should accept those same sex or common law spouses that qualify under normal selection system or where R. 11(3) is warranted if selection points do not reflect applicant's ability to successfully establish. In these cases the bona fides of the relationship are probably not relevant to the assessment of the application.
   
6. If options in para 5 are not viable missions should review same sex or common law applications for H&C grounds. Where H&C grounds are compelling it is appropriate for program managers to use their R.2.1 authority to waive R.8 and authorize the issuance of an immigration visa. H&C grounds in such cases include the existence of a stable relationship with a Canadian citizen or permanent resident. Missions should recognize that undue hardship would often result from separating or continuing the separation of a bona fide same sex or common law couple.
   
7. When assessing whether H&C factors are present missions may, of course, look behind same sex or common law relationship (as is done with marriages of convenience.) Missions should assess relationships to determine that they are bona fide (in terms of duration and stability of relationship) and not entered into primarily for the purpose of gaining admission to Canada of one of the parties. Where H&C factors are present and applicant is otherwise admissible missions should issue immigrant visa. Where no grounds exist to accept applications, including those that were initiated by FC sponsorship (even though sponsorship precluded by regulations,) mission should refuse applicant as independent under a 19(2)(D), R.4 etc. Independent refusal letter should make clear that FC sponsorship was reviewed but found to be outside of regulations.
   
8. Missions may also use R. 11(3) or R.2.1 to facilitate the admission of an otherwise unqualified applicant who is involved in a same sex or common law relationship with an individual who, in their own right, qualifies for immigration under any category. For example, missions could use R. 2.1 to issue an immigrant visa to the same sex spouse of a qualified independent applicant.
   
9. Vancouver based organization quote LEGIT unquote (Lesbian and Gay Immigration Task Force) which is active in promoting changes to immigration spousal regulations have advised us that they intend on sending questionnaire to program managers overseas. Purpose of questionnaire is to elicit information on the manner in which offices might process qualified same sex clients. While LEGIT is free to send questionnaire we have informed them that missions do not normally answer hypothetical questions. We have also shared this telex with LEGIT and have informed them that missions may choose not to answer questionnaire.
   
10. This telex should be shared with all staff. Any questions on this telex should be addressed to ORCI with copy to YR Geographic Division.

Sign My Guestbook

View My Guestbook