Coming out to Canada: the immigration of same-sex couples under the Immigration and Refugee Protection Act.

• Author: LaViolette, Nicole

While Canadian immigration policy has long favoured family reunification, until recently, Canadian immigration laws allowed only married heterosexual Canadians to sponsor their spouses as family class immigrants. The recently enacted Immigration and Refugee Protection Act, and the accompanying Immigration and Refugee Protection Regulations, have expanded the family class to allow gay men and lesbians to formally sponsor their partners. In this article, the author argues that despite the important progress made in recognizing gay and lesbian conjugal relationships under the new legislation, the issue of same-sex immigration remains problematic. The author examines the legislative scheme to reveal that the new family class categories still contain policy and drafting weaknesses that could hinder same-sex immigration. In addition, while the new legislation offers a better regime than existed previously, gay men and lesbians remain vulnerable to discriminatory applications of the law if visa officers, members of the Immigration Division, and Federal Court judges do not recognize the political, social, and cultural specificity of gay and lesbian couples who apply for permanent residency in Canada.

Alors que la politique canadienne sur l'immigration a longtemps favorise la reunification familiale, jusqu'a tout recemment, Le droit de l'immigration permettait exclusivement aux repondants heterosexuels de parrainer la demande d'immigration de leur conjoint en vertu de la categorie >. Nouvellement edictee, la Loi sur l'immigration et la protection des refugies et le Reglement sur l'immigration et la protection des refugies a finalement elargi la categorie de la famille pour y inclure les couples gais et lesbien, heur permettant ainsi de parrainer officiellement leur conjoint. L'auteure de cet article constate qu'en depit du progres important qu'entraine la nouvelle loi vis-a-vis la reconnaissance des relations conjugales homosexuelles, la question de l'immigration des couples de meme sexe demeure problematique. Dans son examen du nouveau regime legislatif, l'auteure demontre que la categorie > preserve certaines faiblesses tant au niveau de la politique que de la redaction, qui risquent forcement d'entraver l'immigration des couples de meme sexe. Entre autre, la vulnerabilite des gals et les lesbiennes face a l'application discriminatoire de la loi persistera si les agents de visa, commissaires de la Section d'immigration et juges de la Cour federale ne reconnaissent pas la particularite politique, sociale et culturelle des couples homosexuels qui font demande pour L'obtention du statut de resident permanent au Canada.

Introduction I. Gay and Lesbian Immigration--Past and Present A. Historical Perspectives 1. Prostitutes, Homosexuals, and Pimps: 1952-1977 2. (Heterosexual) Family Reunification: 1977-1991 3. The Charter to the Rescue: 1991-1994 4. A Kindler, Gentler (and Discretionary) Policy: 1991-2002 B. The 2002 IRPA and IRP Regulations 1. The Basic Framework: Bill C-11 2. A First Attempt: The 2001 Regulations 3. Back to the Drawing Board: The 2002 Regulations 4. The Final Version: The IRPA and the IRP Regulations II. Problems and Challenges A. Policy and Drafting Problems with the IRPA and the IRP Regulations 1. Some Relationships Are More Equal Than Others 2. Give Us Your Truly Persecuted Few 3. Till Heterosexual Death Do Us Part B. The Application of the IRPA and the IRP Regulations 1. Homophobia 101 2. Bona Fide Homosexualis 3. Persecution: Making the Case 4. I Take Thee to Be My Civil Union Partner Conclusion Introduction

Canadian immigration policy has long favoured family reunification. The most recent legislation, the Immigration and Refugee Protection Act, (1) provides that one of the official objectives of the law is "to see that families are reunited in Canada." (2) This goal bas been a cornerstone of Canadian immigration policy, and successive laws have allowed citizens and permanent residents to sponsor members of their family as immigrants to Canada. (3) Individuals sponsored under the family reunification provisions of the immigration legislation are referred to as "family class immigrants".

While family class immigrants have constituted an important part of the historical and current immigration to Canada, (4) until recently Canadian immigration laws allowed only married, heterosexual Canadians to sponsor their spouses as family class immigrants. Lesbians and gay men were able to sponsor parents, siblings, and most of the other family members listed in the family class on equal footing with heterosexual Canadians and permanent residents. (5) The definitions related to conjugal relationships, like "spouse", "fiance(e)", or "marriage", however, historically referred only to opposite-sex couples. (6) Thus, gay men and lesbians were prohibited from sponsoring their partners as immigrants to Canada.

On 28 June 2002, the IRPA and the Immigration and Refugee Protection Regulations (7) came into effect. The new law and regulations have expanded the family class to incorporate common law and conjugal partners, in addition to married spouses. Included in these new provisions are gay and lesbian couples. Indeed, the new legislative and regulatory scheme sets out the rules concerning the sponsorship of same-sex partners. For the first time in Canadian immigration history, gay men and lesbians will be able to formally sponsor their partners. (8) In changing its immigration policy to include same-sex couples, Canada joined several other countries in extending immigration rights to prospective gay and lesbian immigrants. (9)

The principal categories of immigrants to Canada are independent immigrants, (10) business immigrants, (11) and family class immigrants. This article is concerned only with the latter, namely immigrants who qualify for permanent residency as family members. In addition, it is specifically the situation of gay and lesbian family members that will be the focus of the analysis, though it is acknowledged that common law, heterosexual couples were also included in recent changes to immigration laws. This paper will argue that despite the important progress made in recognizing gay and lesbian conjugal relationships under the IRPA and the IRP Regulations, the issue of same-sex immigration remains problematic. This is so for two reasons. First, the legislative scheme itself still contains policy and drafting weaknesses that may hinder same-sex immigration. Second, even if the new legislation offers a better regime than existed previously, gay men and lesbians remain vulnerable to discriminatory applications of the law if visa officers and judges do not recognize the political, social, and cultural specificity of gay and lesbian couples who apply for permanent residency in Canada.

The article is divided into two main sections. Part I reviews historical discrimination against gay men and lesbians in Canada's immigration laws. In addition, the first section will describe the legislative developments that led to the inclusion of same-sex family sponsorship in the IRPA and the IRP Regulations. The analysis will highlight the federal government's motivations for changing the permanent residency requirements to include same-sex partners, the interests that were at stake at the time, and the entitlements or obligations flowing from the new legislative scheme. Part II examines the ways in which same-sex family immigration remains problematic under the IRPA and the IRP Regulations. The analysis will first review the new immigration law and regulations to identify government policy and drafting choices that disadvantage prospective gay and lesbian immigrants. Second, the analysis will examine the application of the new law and regulations to same-sex partners. Here, the focus will be on determining what issues are specific to same-sex partner immigration, and how they could impact on an immigration officer's assessment of the merits of the application.

1. Gay and Lesbian Immigration--Past and Present

   The following discussion will provide a brief historical review of Canada's discriminatory immigration policies, as well as examine the recent legislative changes that purport to put gay men and lesbians on an equal footing with their heterosexual counterparts.

   1. Historical Perspectives

      1. Prostitutes, Homosexuals, and Pimps: 1952-1977

         Canadian immigration law has historically discriminated against gay men and lesbians. (12) Until 1977, homosexuals were listed in the categories of persons to be excluded from Canada along with "prostitutes, ... pimps, or persons coming to Canada for these or any other immoral purposes." (13) In 1952, amendments to the Immigration Act were adopted that, according to Philip Girard, constituted a Canadian response to Cold War national security concerns. (14) The 1952 law identified for the first time "homosexuality" as a ground on which someone could be denied entry into Canada. Gay men and lesbians could not enter Canada as visitors; they could not come to Canada as immigrants seeking permanent residence; and gay men and lesbians who managed to enter into Canada were subject to deportation if they were found to have "practice[d], assiste[d] in the practice of or share[d] in the avails of ... homosexualism." (15)

      2. (Heterosexual) Family Reunification: 1977-1991

         The discriminatory provisions of the 1952 Immigration Act were repealed in 1977 and gay men and lesbians were no longer barred from entering the country. (16) Canadian immigration law continued, however, to allow only heterosexual Canadians to sponsor their spouses as family class immigrants.

         The exclusion of gay men and lesbians from the family class of immigration laws was brought to the attention of the Canadian public in a highly publicized case in 1992. (17) Two gay men--Todd Layland, an American, and Pierre Beaulne, his Canadian partner--wanted to stay together in Canada, but immigration law prohibited Beaulne...