Gay and Lesbian Immigration to Canada

On Wednesday, 20 July 2005, Canada became the fourth country in the world to officially recognize same-sex unions as equal to those of heterosexuals. The new law makes it possible for gay and lesbian couples to get married – but it also has other, far reaching implications, even for those couples who have no intention of getting hitched. Same-sex couples who are married, or who have simply been living together for at least 1 year, now have the same rights as straight couples when it comes to taxes, inheritance, hospital visitation rights – and, of course, immigration.

The road toward passing the same-sex marriage law has been long and difficult. The Conservative Party, backed by the evangelical Right, religious Jewish and Muslim organizations, a spattering of members from other parties, and the country’s southern neighbor, tried desperately, and sometimes comically, to stall other bills in Parliament, and even tried to bring down the government in May 2005 – all of this, in large part, to stop this progressive bill from even coming to a vote.

The party attempted to hijack other issues scheduled before the same-sex vote, playing dirty tricks worthy of the White House. The Conservatives attempted to hold hostage the new Federal Budget, which many consider to be the best budget in the last 30 years – but to the delight of much of the country’s population, the strategy backfired when the Liberals aligned with the New Democratic Party (NDP), the leftist “third party” of Canada, who proceeded to make the budget even more progressive. The NDP forced the Liberal government to erase from the bill a $4 billion tax cut for large corporations and hand the money over to affordable housing and education.

Meanwhile, Members of Parliament were flooded with admonitions, predictions of hellfire, and even threats – most of them sent by American citizens. Several Members of Parliament wondered publicly why they should listen to people from another country instead of their own electorate.

Demands of a country-wide referendum flew around, but were quickly abandoned when poll after poll indicated that most Canadians either demanded equality for gays and lesbians, or simply did not see any logical reason to deny it. (A member of the right-wing Defend Marriage Coalition was heard to remark, with unintended irony, that ALL Canadians supported the Conservative position, except for women, minorities, urban populations, young people and French Canadians.) Then, in a whirlwind of rapid and often disorienting events, one of the more prominent leaders of the Conservative Party publicly and spectacularly changed sides and became a Liberal minister (dumping her boyfriend, Number Two of the Conservative Party, in the process); another Liberal cabinet member, in turn, resigned his seat in protest to the same-sex marriage bill; and the bill finally passed 158 to 133.

The passing of the same-sex marriage law packed enough punch to make a Hollywood blockbuster or a daytime soap opera; but in fact, gay and lesbian families have been enjoying equal rights in most of Canada – and have been recognized by the Canadian federal immigration authorities – for several years.

The History
Long before the historic passing of the same-sex marriage law, gay men and lesbians enjoyed far greater freedoms in Canada than they did in most other countries, including the United States. Homosexuality was decriminalized in Canada in 1969 – the year of the Stonewall riots in New York. Pierre Trudeau, one of the great figures in Canadian history, famously remarked, introducing the changes to the criminal code, “There’s no place for the state in the bedrooms of the nation.”
The first gay civil rights law in Canada was passed as far back as 1977, when Quebec outlawed discrimination against homosexuals in housing and employment. The very next year, homosexuals were removed from the list of “inadmissibles” and were allowed to immigrate to Canada.

The Canadian Parliament got its first openly gay Member of Parliament in 1988 when Svend Robinson of the NDP, who had been in Parliament since 1977, officially came out. In 2000 he was re-elected for his eighth term.

In the 1990s, the process seemed to accelerate. One province after another was forced to add sexual orientation to Human Rights acts and make discrimination against gays and lesbians illegal. The Supreme Court of Canada handed down ruling after ruling declaring that homophobia was not to be tolerated. The Canadian military lifted its ban on homosexuals in 1992; in 1995 Ontario made it legal for same-sex couples to adopt children together; and in 1999, the Supreme Court ruled that the definition of marriage as the union of one man and one woman was unconstitutional.

The Supreme Court ruling opened the door for gay and lesbian couples to demand equal partnership rights. A few months after the decision was passed down, the category of “same-sex partners” was added to more than 60 family laws. Although the change stopped short of giving gay men and lesbians the right to marry, it gave same-sex couples many of the same rights conferred on married and common-law heterosexual unions. Next year, 68 laws were changed again, to make same-sex couples fully equal to straight common-law relationships.

In 2002, the Supreme Court took a more direct approach to the question of same-sex marriage. It ruled unequivocally that preventing same-sex couples from marrying was unconstitutional. The year after that, Ontario became the first Canadian province to start issuing official marriage licenses to gay and lesbian couples. British Columbia became the second province to extend marriage rights to homosexuals less than a month later, and more provinces followed. By the time the federal law was passed in 2005, only three parts of Canada – the province of Alberta, the province of Prince Edward Island, and the Northwest Territories – had still not legalized same-sex marriages. In effect, those were the only places where the federal law had any real effect: the rest of Canada had already recognized gay and lesbian relationships as equal.

So what does this mean for immigration? What can a gay or lesbian immigrant expect from Citizenship and Immigration Canada (CIC), the body that grants the right to live in Canada?

The CIC didn’t wait for the federal law to start treating gays and lesbians equally. As soon as Ontario became the first province to legalize gay marriage, the CIC expanded the definition of family class to include same-sex partners of Canadian citizens and permanent residents.

Until then, Canadians could sponsor their wife or husband, or their common-law partner with whom they had lived for at least 1 year. Once the CIC was satisfied that the relationship was genuine, the wife, husband or common-law partner was granted Permanent Resident status, with most of the same rights as Canadian citizens, including medical coverage, the right to work and study, the right to apply for Canadian citizenship, and many others.

Once the CIC definition of spouse and common-law partner was expanded to include same-sex couples, Canadian gay men and lesbians were able to sponsor their partners in the same way – even using the same forms and applications – that heterosexual couples had been using for years. People could only claim to be “spouses” if they had been married in the provinces where same-sex marriage was legal; but even if the couple were unfortunate to live in one of the less progressive provinces, they were still allowed to apply for Permanent Residence as common-law partners. Gay and lesbian foreigners all across Canada were finally able to legalize their status because they were now officially recognized as FAMILY of their Canadian partners.

Another development was that the Immigration and Refugee Board (IRB), the body that grants asylum to people whose life might be in danger in their home country, now recognized homosexuality as one of the reasons for persecution, and began granting refugee status to gays and lesbians. Refugees poured into Canada, escaping countries with established homophobic policies and practices, and strengthening and diversifying Canadian gay and lesbian communities in the process. Today, Canadian Gay Pride Parades are some of the most diverse events in the world, with gay and lesbian Muslim contingents marching alongside gay and lesbian Wiccans, and men and women in colorful Indian saris sharing the streets with leather-clad participants.

This breakthrough in the rights of gay and lesbian immigrants, however, wasn’t devoid of problems. As the Canadian immigration and refugee policies became more and more welcoming, and the news spread that gay men and lesbians could now get Permanent Residence in Canada on the basis of their sexuality, the incidents of fraud started cropping up. In one of the more hilarious cases, two men showed up in Quebec, bringing along their two wives and numerous kids, and attempted to claim refugee status as homosexuals. They were denied.

As funny as this event was, it did nothing to help gay and lesbian immigrants in real need of help. As the incidents of fraud mounted, the CIC and the IRB began considering even the genuine cases with more suspicion. This meant that many immigrants now had to wait for much longer periods to receive their status, sometimes unable to work or study in the country while they waited, and had to show more proof of their sexuality, which could sometimes be difficult for those immigrants who had had to stay closeted in their home countries for fear of their lives. A Mexican man was denied asylum because he looked “too macho,” and same-sex spouses and common-law partners were rigorously questioned to prove that their relationships were real and not just for the sake of immigration.

Today, the IRB process tends to be quick but unpredictable. Though generally, an immigrant has to wait just a few months for a refugee hearing, when the hearing comes many people are denied or required to show more proof of their sexuality. Liars are turned away, but sometimes so are real gays and lesbians. Immigrants from some countries, like Pakistan, Egypt and Saudi Arabia with their well known homophobic laws and cruel punishments, generally have easier time getting asylum; people from other countries, like Mexico which is beginning to develop its own gay rights laws, can never be sure that they will be approved.

Spouses and common-law partners often have to wait a year to two years to be interviewed, though some cases have been known to take just 3 months. Meanwhile, many applicants remain in Canada on visitor or student visas with heavy restrictions, and are often unable to work or receive free healthcare while they wait for their case to be approved. This places a great financial burden on their Canadian spouses or partners.

Having said that, Canada still remains one of the most welcoming countries for gay and lesbian immigrants. Heterosexual couples and asylum seekers often face the same problems of long wait times and requests for additional proof; gay and lesbian immigrants are not singled out for their sexual orientation. The very fact that Canada offers gay men and lesbians the opportunity to be sponsored by their same-sex partners, or to get asylum on the basis of being homosexual, makes the country a great beacon for sexual minorities everywhere. It has a much more welcoming immigration policy than the Netherlands, Belgium and Spain – the other countries that have legalized same-sex marriage. And it has the most progressive gay rights laws of all the countries that do have open immigration policies. Gay and lesbian immigrants still have to face many trials and tribulations as they claim legal status in Canada; but, strengthened by the progressive laws and the inclusive culture of Canada, they have a much better chance of succeeding here than anywhere else.

What This Means For People In the United States
Canada has always avoided giving refugee status to US citizens and permanent residents. Recently, Tre Arrow, an “eco-terrorist” from the West Coast, lost his bid for asylum and has been committed for extradition back to the States. Jeremy Hinzman, a US paratrooper who refused to be shipped to Iraq, also lost his refugee case. Currently, a group of gay and lesbian US citizens are waiting to have their asylum case heard, though nobody really expects them to succeed.

There are many reasons why Canada is careful not to offer refugee status to US citizens and permanent residents. The United States is still Canada’s biggest trading partner, which often gives the US a chance to exert pressure on the Canadian political process. Another argument against giving US citizens and permanent residents asylum is that there are people who need help a lot more: gays and lesbians escaping death sentences in Muslim countries; people being actively maimed and starved in war-torn regions of Africa; political refugees from Colombia whose entire families are being systematically wiped out. People who speak out against asylum for US citizens and permanent residents argue that, after all, US gays and lesbians aren’t doing too bad, relatively speaking.

Canadian policies, however, are constantly changing to stay abreast with the constantly changing situation around the world. As the US passes more and more homophobic policies and tightens its control on gay men and lesbians, Canada will be closely watching its neighbor. If the present administration succeeds in passing a constitutional amendment to outlaw same-sex marriage (and by extension, same-sex common-law partnerships, the right of inheritance, adoption, hospital visitations, spousal medical insurance and many other private contracts between partners of the same sex), it is possible that Canada will react accordingly and start giving much more consideration to American gay and lesbian refugee claimants.

In December 2002, the U.S. pressured Canada into signing the infamous Safe Third Country Agreement, which now prohibits Canada from accepting even non-US refugees at the US-Canada border. Before the agreement went into effect, people who were living illegally or under temporary visas in the U.S. could come to one of the many border crossings and apply for asylum right there. They were processed, given legal help and sometimes housing help, received a temporary work permit, and then waited several months for the refugee hearing.

However, once the agreement went into effect late last year, people without US citizenship or Permanent Residence could no longer apply at the US-Canadian border. Since this is the country’s only actual land border, this development has understandably hurt many people’s chances of getting into Canada to ask for asylum. Now, people who want to seek refugee status in Canada must do so at a Canadian embassy in their own country, which can sometimes be dangerous for people who are under watch by their government or other reactionary organizations. (There have been cases where soldiers or thugs waited outside embassies, ambushing people who came to seek refugee status.) The only other option is asking for asylum at the border crossing in a Canadian international airport, which also is not easy: before people can even get to a Canadian airport, they must first be approved for a visitor visa, and have enough money for an often expensive international flight. Predictably, the enforcing of this Agreement – which Canada succeeded in postponing until December 2004 – has increased the amount of illegal trafficking of refugee applicants from the U.S. into Canada.

All in all, the Safe Third Country agreement has done immense damage to the chances of refugees trapped without legal rights in the US. To Canada’s credit, it delayed implementing the program for a couple of years, in which time it publicized the fact that this program exists through various immigration and refugee organizations in the US. These organizations tried to spread the word among illegal or temporary immigrants in the US, and as a result, thousands of people were able to get out and apply for asylum before the Safe Third Country program officially went into effect.

Same-sex family sponsorship remains the one sure way for US citizens and permanent residents to immigrate to Canada based on their sexual orientation. Many romances have blossomed between Canadians and Americans; countless gay and lesbian people have come to Canada to get married; and currently, there are thousands of same-sex sponsorship applications being processed in CIC offices across the country. As we said before, there are many instances of fraud, and all cases are being scrutinized with much rigor; but overall, a marriage or a common-law partnership with a Canadian gay man or lesbian is the quickest, simplest way for US homosexuals to make a new home in Canada.

There are other channels of immigrating to Canada which don’t involve the applicant’s sexuality. People with a certain level of education and professional experience can come through the Skilled Worker program (guide available at; business owners can immigrate through opening their own business in Canada, and people who have $400,000 or more to spare can invest in Canadian government and receive Permanent Residence in return. (This process will be detailed in the upcoming Volume 3, Business Immigration of How To Move To Canada.) The Canadian immigration system remains one of the most progressive and welcoming systems in the world – most people who have a clear criminal and security record can find a way that will work for them.

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