I'm in a Same-sex Relationship, Can I Immigrate to Canada?

If you are in a same-sex relationship, you must be wondering whether Canada would be a good choice for you to immigrate. The answer is, yes, you can immigrate to Canada if you are in a same-sex relationship.

Canada was amongst one of the first nations around the world to recognize same-sex unions and relationships. Canada is one of the most LGBTQ+ friendly nations in the world, welcoming people from different walks of life to seek a new beginning in Canada. This country has an inherent promise of equality for everyone regarding their age, sex, religion, ethnic origin, and it is an enshrined right in the Canadian Charter of Rights and Freedoms.

Section 15 of the Canadian Charter of Rights and Freedoms recognizes equal rights and states that everyone is equal before and under the law. Moreover, equal protection and equal benefit of the law without discrimination. Sexual orientation is also covered under section 15 of the Canadian Charter of Rights and Freedoms as no one can be discriminated against based on their sexual orientation.

You can comfortably immigrate to Canada whilst being in a same-sex relationship as there is protection against discrimination enshrined in the law of the land. Canada is an exception to many nations around the world where homosexuality is either a crime or results in the death penalty. Canada has come a long way from its anti-LGBT stance and has ensured that no one can be discriminated against based on their sexual orientation. Canada often is the nation of choice for individuals feeling their nations based on sexual orientation discrimination and violence due to its non-discriminatory protection of all its citizens regardless of race, creed, sexual orientation, or disability.

Canada’s LGBTQ+ History

Canada was not always very progressive when it comes to LGBTQ+ issues. Just like many other nations around the world, homosexuality was criminalized, and LGBTQ+ groups were targeted by the government, often facing prison and police brutality. Canada has come a long way in its treatment of LGBT groups, but it is important to remember how Canada got to this step of acceptance.

Homosexuality was criminalized in Canada but that changed in 1969 when homosexuality was decriminalized by the passage of the Criminal Law Amendment Act. This meant that it was no longer criminal to be a homosexual and the police could not arrest homosexuals based on their sexual orientation. This however did not stop the LGBTQ+ community from becoming a frequent police brutality target.

In 1973, homosexuality was no longer considered a disorder as it was removed from the diagnostics and statistics manual of mental disorders. Throughout the ’70s, LGBTQ+ was a continuous target of the police as gay bars and bathhouses were constantly raided by the police, and patrons were subjected to violence. Things were however progressing as Quebec added sexual orientation to its Human Rights Code in 1977. This meant that LGBTQ+ identifying individuals could no longer be discriminated against in the province of Quebec when it came to issues of housing, public accommodation, and employment. This was a huge step forward as Quebec was one of the only places in the world to offer this level of protection to the LGBTQ+ community when the rest of the world lagged much behind.

Prior to 1978, homosexuals were actively prohibited to immigrate to Canada before the Immigration Act. This however was changed in 1978 when the Immigration Act came into effect on April 1, 1978. The amended act lifted the ban on homosexuals from immigrating to Canada. This was a huge step forward as LGBTQ+ members from other nations could seek protection within Canada and flee persecution.

The 1980s and 1990s saw renewed tensions between the LGBTQ+ groups and police as the police continuously raided and arrested homosexuals at bars. The ’80s and 90’s also saw a huge growth in pride parades which were held across Canada, province to province. The 90’s also saw sexual orientation added in the Canadian Human Rights Act and the Supreme Court of Canada ruling that provinces could no longer discriminate against homosexuals. With the introduction of Bill C-38, Civil Marriage Act in 2005, same-sex couples had the legal right to marry all over Canada. This made Canada only the fourth country in the world to legalize gay marriage at that point in time.

This was a major breakthrough for the LGBTQ+ community which had sought civil union protection under the law. This also opened the door for many foreign nationals who wanted to immigrate to Canada to flee persecution based on sexual orientation from their countries of origin. Canada’s many progressive legislation and societal behaviours have made it a nation to consider for those who seek to flee violence and discrimination based on their sexual orientation.

Canada has been progressive compared to the United States which only legalized same-sex marriages in 2015. Though several states had previously legalized same-sex marriages, overall state protection was not in place under the Supreme Court ruling in Obergefell v. Hodges. Prior to this landmark decision, same-sex couples could be denied many rights in several states in the United States. After the decision in the 2015 case Obergefell v. Hodges, same-sex marriage was legalized in all 50 states granting all American citizens the right to marriage. Though Canada and its neighbour, the United States have both legalized gay marriage after years of struggle and campaigning, homosexuality is still a crime in many nations across the globe and often punishable by either jail time or death.

So, Can I Sponsor My Same-Sex Partner to Come to Canada?

Of course! The Canadian government nor the Immigration Department will deny an application of same-sex applicants. As noted in Canada’s LGBTQ+ history, Canada is very open to same-sex relationships, and a spousal sponsorship is no different. Same-sex couples would follow the same process and procedure as opposite-sex couples, if their relationship is recognized in their country of origin. If your relationship is not recognized by your country of origin, we will speak about conjugal relationships in the next subheading.

According to IRCC, a marriage that took place outside Canada means, “a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law.” A Citizen or PR can sponsor their same-sex partner if their marriage is legally recognized by their country of origin AND under Canadian law. If you are in a same-sex common-law relationship, your common-law relationship must be recognized as common-law in both countries. If you want to learn more about common-law relationships, check out our blog here.

Again, if the country that you were married in, recognizes same-sex relationships and your relationship is legal in the country of origin and Canada and you follow all requirements of a legal marriage/common-law relationship, you are more than welcome to apply for a Spousal Sponsorship if you qualify for all other requirements of the program as this is deemed to be valid ground to apply under the program.

My country does not recognize same-sex relationships, can I come to Canada?

This is one of the most frequently asked questions by LGBTQ+ groups around the world. The answer is yes, Canada recognizes same-sex relationships since 2005 by the passage of Bill C-38: Civil Marriage Act which recognizes civil union between same-sex couples. Even if your country of origin does not recognize same-sex marriage, it is a law under the Canadian government for same-sex couples to have the same marriage rights as anyone else.

If your country of origin does not recognize the same-sex relationship, you can immigrate to Canada granted that you can prove that you are in a conjugal relationship. You ought not to prove that you are married but you will have to prove that you are in a conjugal relationship with your partner. Please note that conjugal relationships, need not only be sexual relationships alone, but as conjugal relationships also need to have a degree of interdependence. This means that partners must have attachment by means of financial, social, emotional, and physical attachment. Essentially, it is important to establish that both individuals are dependent on each other in more than one way.

The Supreme Court of Canada case M v. H sets out factors that should be considered to establish a conjugal relationship. These include shared shelter, sexual and personal behaviours, services, social activities, economic support, children, and societal perception of the two as a couple.  Some of these factors might be hard to prove whilst living in a country that does not recognize same-sex relationships, but it is important to remember that there is no requirement of having a legal document proving the commitment.

For a spousal sponsorship, the word “conjugal” is not described in the IRPA, therefore is evaluated on a case-by-case basis. This category only applies to foreign nationals being sponsored by a Canadian citizen or permanent resident under the family class. In the conjugal partnership category, neither common-law status nor marriage is possible which opens doors for many foreign nationals who are in a same-sex relationship not recognized in their country of origin.

When assessing the conjugal relationship, the visa officer may look at the inability to live together due to persecution or any other form of penal control. This applies in the cases of same-sex couples who cannot live together as a couple due to fear of persecution. Persecution can result in loss of employment, not being able to find habitation, prison, torture, and in worst cases, death. Persecution can be from the state, state actors, or public who might resent homosexuality. There are requirements in place for foreign nationals and their sponsor to provide evidence regarding their conjugal relationship which has been ongoing for at least one year. The sponsor and foreign national must also prove that they are in a committed and interdependent relationship to qualify. The conjugal relationship sponsorship allows the sponsor to bring their partner to Canada to avoid any persecution they might face and live a better life in Canada without any fear of persecution.

Convention Refugee
Although we don’t specialize in refugee work here at Second Passport, we wanted to lay out another option to you if you qualify as a convention refugee. To qualify as a convention refugee under s. 96 of the IRPA, the applicant must have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

In the case where your country of origin does not recognize same-sex relations and is discriminatory towards LGBTQ+ groups, the applicant may apply under membership in a particular social group category. The applicant has an innate feature that he or she cannot change and has a membership in that particular social group that is being persecuted. To qualify, the applicant must also be outside their country of nationality, and they are unable to return due to a well-founded fear of persecution. The applicant can also claim that they do not have a country of nationality and cannot return to their habitual residence in a former country due to well-founded fear of persecution.

The determination of admissibility is made by the Immigration and Refugee Board of Canada. Upon admissibility, the applicant may become a permanent resident or a temporary resident for protection reasons. This route is often taken by LGBTQ+ members who live in war-torn countries where they are further persecuted for their sexual orientation. Convention refugee status allows them to flee persecution and move to Canada for better living conditions, without any discrimination based on sexual orientation.

Convention refugee protection seeks to save LGBTQ+ lives in nations where persecution based on sexual orientation is normalized and often has deadly consequences. Canada’s protection of LGBTQ+ communities under the Canadian Charter of Rights and Freedoms not only protects Canadians but also can be a hope for homosexuals living in fear of persecution of other countries. 

Final Thoughts

In conclusion, if you are in a same-sex relationship and want to sponsor your partner, Canada welcomes you with open arms. If you qualify for all requirements of a spousal sponsorship, you are welcome to apply. Spousal sponsorships can often be a complicated and tedious process, especially in conjugal relationships. Your application includes many forms and documentary evidence to show that you and your significant other are in a genuine committed relationship. It is important to do the process correctly the first time, so you might benefit from the help of an immigration consultant, or lawyer to guide you through what needs to be done.

Should you have any questions about spousal sponsorships and if you qualify, feel free to reach out to us and we will surely get you started to understand the options that are available to you!

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