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Immigration for Same Sex Couples Where One Partner is Canadian and One Partner is Immigrating

So, you've met the love of your life and have a great thing going, but there's just one little catch. Your partner happens to come from a different country and you can't figure out how to deal with immigration. For thousands of LGBTQ Canadians and permanent residents with non-Canadian partners, this issue determines the survival of their relationships. Access to spousal benefits is worthless if your partner cannot live with you in Canada.

Canada recognizes same-sex marriage if the marriage is valid according to the law of the country where the marriage took place and according to Canadian law.

Canadian legislation provides both same- sex and opposite-sex unmarried partners of Canadians to be sponsored by their Canadian partners. There are two possible categories. The first is “common-law partners”. This is a conjugal (“marriage-like) relationship where the partners have cohabited for at least one full year. An exception may be made for persons unable to cohabit because of persecution or penal sanctions. The second is “conjugal partners”. This is an alternative option for persons who cannot meet the definition of common-law partners because they are unable to fulfill one year of cohabitation or get married but have been in a conjugal relationship for at least one year before the date they file the sponsorship application. This is the most difficult of the three options to apply for.

Spouses and common-law partners can be sponsored from within Canada if they are living with their Canadian sponsor in Canada and have valid immigration status in Canada. They may also be sponsored overseas by having the application processed through a Canadian visa office, even if they are living in Canada. Conjugal partners can only be sponsored overseas.

Sponsored spouses or partners in a relationship of two years or less and who have no children in common with their sponsor at the time of the sponsorship application will have a condition attached to their permanent resident status. If you have been granted conditional permanent residence, you must live together with your sponsor in a legitimate relationship for two years from the day you receive conditional permanent residence. The condition ends after the two-year period. You do not have to stay in the relationship to keep your status in Canada if you are being abused or neglected.

If you are affected by the conditional permanent residence measure, you can request an exception if you are being abused or neglected. 

The Canadian sponsors in overseas applications have the right to appeal the refusal of the application to the Appeal Division of the Immigration and Refugee Board.

The Canadian sponsors of applications filed in Canada do not have the right to appeal a refusal although they may be able to seek a remedy through Federal Court.

Spouses, common-law partners, conjugal partners, and their dependents are exempt from the medical inadmissibility provisions for excessive demand on health or social services.

So, for example, an HIV-positive conjugal partner could not be barred. They are not exempt from medical inadmissibility for public health risks such as tuberculosis.

Applications can be refused if CIC believes the relationship is not genuine or that the primary purpose of the relationship is to facilitate immigration to Canada.

CIC has discretion to give permanent residence to persons not eligible to be sponsored as common-law partners or conjugal partners on humanitarian and compassionate considerations. Refusals of these decisions cannot be appealed to the Appeal Division of the IRB.

The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice. 

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