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Canada Introduces New Immigration Act
Opens the door for same sex couple sponsorship

THE government of Canada introduced a bill in the House of Commons yesterday, entitled the Immigration and Refugee Protection Act, to replace the Immigration Act of 1976.

Federal Minister of Citizenship and Immigration Elinor Caplan had been under pressure for some time to make changes in the laws concerning immigration in general and in particular the handling of refugee claims, 'human smuggling,' entry gained by people with questionable criminal and human rights violation backgrounds, and yes, same sex couples.

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Telling the press "I will not mince words ... it's a tough bill," Minister Caplan described increased fines for human smuggling and no welcome mat for war criminals, terrorists, and people guilty of crimes against humanity.  On the subject of Canada's continuing commitment to family reunification, the Ministry said in a statement:  "[The bill will] modernize the definition of family class to include spouses, common-law and same sex partners."

The critical change for gay couples is the proposed inclusion of common-law partners, which will include same sex ones, in the family class for immigration (as opposed to immigration on the basis of employment or business investment).  This means that a Canadian will be able to actually sponsor their partner - a right previously reserved for married couples.

To date, a same sex partner of a Canadian has had to apply on 'Humanitarian and Compassionate Grounds,' which, although generally effective for partners residing in Canada, has been reportedly less effective for partners residing in some foreign countries.  The weakness has allegedly been due to the discretion given to foreign-placed officers of the Ministry in that matter combined with the requirement for verification of common-law relationships, both gay and straight, in the absence of documentation such as a marriage certificate.

"That discretion will always be there," said Ministerial Press Secretary Derik Hodgson.  "But now there will be more training; we will have money for more training."

In addition, concerns have been expressed regarding the definition of 'common law partner' not being included in the bill.  The applicable section, Section 12(2), brings 'common-law partner' into the family class but does not define it.  That definition will be included in the regulations.

Regulations are those areas of law which accompany legislation but are created and modified by the Cabinet through an Order-in-Council.  Establishing some law this way allows the government flexibility to manage the affairs of the nation as they may change, without having to go through the long and drawn-out process of passing a bill through the House of Commons.

The regulations will be drafted while the bill is at the committee stage.
-Rene Mercier,
Citizenship and Immigration Canada
But it's not unusual to have such definitions in the regulations, as opposed to the legislation, where immigration law is concerned.  "The definition of a lot of things are in the regulations," Ottawa immigration lawyer Mike Bell stressed, "including [the definition of] family class [itself].

"The intention of the bill is to change the law so that common-law domestic partners are treated the same as married persons," Mr. Bell stated, "and then describe this in the regulations.

"It is inconceivable not to include it in the regulations after having literally accepted all of these applications [for same sex partner immigration] from [inside] Canada," he added, stating that he expects the definition of 'common law partner' to be based on duration of the relationship.  "They'll probably continue using '1-year' to define it," speculated Mr. Bell.

The Ministry's task is to verify the legitimacy of the relationship - a requirement even when a marriage certificate is present - and not to focus on cohabitation per se.
Further uncertainty regarding the definition is expected to be eased prior to final vote on the bill.  "The regulations will be drafted while the bill is at the committee stage," explained Rene Mercier of the Ministry.

As to how applicants are to get around a possible cohabitation requirement while being separated across countries, Press Secretary Hodgson stressed that the Ministry's task is to verify the legitimacy of the relationship - a requirement even when a marriage certificate is present - and not to focus on cohabitation per se, and referenced again the additional training expected for foreign-placed officers of the Ministry.

Doesn't hinge on the equality bill, responsibility will be added, and 'convicted of being gay' problems

The proposed right of gay Canadians to sponsor their partner, and any definitions within that, do not hinge on the omnibus equality bill, C-23, passing.  This proposed legislation stands on its own where these processes are concerned.

But this new right will be accompanied by obligations, if the bill passes.

"[Using] Humanitarian and Compassionate Grounds was just an application [on behalf of the partner]," explained Mr. Bell.  "But sponsorship requires responsibility ... for example, if social assistance [welfare] is obtained, under certain conditions the sponsoring partner may be required to repay it to the government," he continued.  The bill proposes, however, to reduce the duration of that responsibility.

And finally, concerns have been voiced regarding the accessibility of Canada's refugee system to people who have been criminalized in their country for being gay.  Canada reportedly disqualifies refugees with certain degrees of criminal background, and this would defeat the purpose with foreign people convicted of homosexuality.

"That's not the case," stated Press Secretary Hodgson.  "There's a rule," he continued "[a gay conviction] would be considered political, not criminal."  Conviction of a criminal offense has to be comparable to a law in Canada, he said.