Same Sex Couples and Sponsorship2012-09-14
I have represented a number of same sex couples applying for sponsorship through my immigration practise. In my view, there are certain challenges with a same sex application, and a few approaches that I believe substantially improve the chances of a successful application.
In some cases, I believe same sex couples actually have a better chance of success than heterosexual couples, which I’ll discuss below.
I don’t believe there is any bias against same sex couples by Citizenship and Immigration Canada (CIC), however. The challenge often comes in the form of proving the bona fides of the relationship, especially when the couple is not (or can not) be legally married.
If a same sex marriage is legal in the jurisdiction in which it was performed, it will be considered legal in Canada. Currently, eleven countries permit gay marriage: Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa, and Sweden and some jurisdictions in Mexico and the United States.
A same sex married couple can usually bypass the hurdle of proving whether or not they are in an exclusive, lifelong and committed relationship – the marriage essentially deems that to be so.
The test is really whether or not the marriage was entered into primarily for immigration purposes or not. In this sense, the application does not differ significantly from that of a heterosexual couple.
However, there could be unique challenges.
For example, in some familes, and in some cultures, same sex marriage is not generally supported (or even acknowledged!), regardless of the law in that jurisdiction. In order to show the bona fides of the marriage, CIC asks details about the family members the spouse has met, details about the wedding, who attended, where the reception was held, and so forth.
A same sex couple that is not supported by family or friends may be unable to show that the sponsored spouse met the soon-to-be inlaws. Family or friends may not attend a ceremony (which is often a civil ceremony), nor participated in a celebration of the marriage after the ceremony at a reception.
If this is the case, then submitting the application forms without anything further is not enough in my view. An applicant should provide a detailed explanation of why family or friends did not meet the sponsored spouse, nor attend the ceremony or reception. If there is a third party who can corroborate these facts, that third party should be asked to provide an affidavit in support of the application, detailing his or her knowledge of the events and attitudes of friends and family of the couple.
Of course, evidence of the development of the relationship to the point of marriage will also be required, and photos, phone records, travel records, and so forth are useful in this regard.
Common Law Couples
In most jurisdictions in the world, legal marriage is not an option for same sex couples. A Canadian common law spouse can sponsor his or her partner for permanent residence.
But what makes a common law couple?
A common law couple must be in an exclusive and committed relationship, and have resided together for a minimum of one year. This is often shown with joint property (or a joint lease), joint assets and other evidence of the relationship.
However, a same sex couple may be in a jurisdiction that does not allow these sorts of joint assets. More commonly, same sex couples find themselves in a situation where their relationship is not supported in the community, where others will not issue them a joint lease or other joint assets.
In addressing this situation, the couple should provide a detailed, written explanation of their circumstances. In addition, mail addressed to each partner at the same address (over time) should be copied and submitted as part of the application to help show joint cohabitation. In addition, withdraws from each partner’s bank account to pay rent or other home expenses should be highlighted as well. If there are friends or family willing to support the sponsorship application, they should be asked to provide affidavits attesting to their knowledge of the couple as cohabiting, exclusive and committed over at least a one year period.
If there is an opportunity for a public confirmation of their relationship, that is a valuable addition to an application as well. For example, in the Philippines, a couple can enter a Holy Union adminstered by certain churches (such as the Metropolitan Church). Although not legally binding in any sense, such unions are persuasive evidence of an exclusive, committed relationship.
Although the conjugal partner category is the most difficult one for heterosexual couples, I’ve found it less difficult for same sex couples in certain regions in my experience.
In jurisdictions where same sex marriage is not legal, and the greater community is particularly hostile to same sex couples, marriage and even common law status are not options.
In these cases, a detailed written explanation should be included in the application detailing the evolution of the couple’s relationship, and experience in the community and their difficulty in cohabiting based on cultural or community norms. A large number of photos, travel records, phone records and similar evidence (taken over a certain time period) should be submitted to show the couple is in a “marriage like” relationship. Any public affirmation of the relationship (such as the Holy Union example given above) should be entered into if possible. Supporting affidavits from friends or family should also be provided affirming the couple is in an exclusive, committed and “marriage-like” relationship.
In my experience, CIC is somewhat sympathetic to such cases, more so than heterosexual conjugal partners who usually have the option or marriage or cohabitation.
I hope this has been a useful overview of same sex sponsorship for Canadian permanent residence. Feel free to share your experience in the comments below, or contact me if you need assistance.