Can a gay man sponsor his straight female friend as a conjugal partner? Can conjugal relationships only be determined based on sexual compatibility, or is there more to it?
In a case that has the potential to expand our traditional thinking about what makes a family, the Federal Court of Canada recently held in its decision in A.P. v. Canada (Citizenship and Immigration), 2020 FC 906, that the genuineness of a “conjugal” relationship application cannot be rejected solely based on sexual incompatibility, other factors must also be considered.
Who is a conjugal partner?
Immigration, Refugees and Citizenship Canada (IRCC) policy states:
“A conjugal relationship is one of some permanence, when individuals are interdependent – financially, socially, emotionally and physically – when they share household and related responsibilities, and when they have made a serious commitment to one another.
Conjugal does not mean “sexual relations” alone. It indicates that there is a significant degree of attachment between two partners.”
Based on family law principles, IRCC policy identifies a number of factors that determine a conjugal relationship, none of which is absolutely required:
shared shelter (e.g. sleeping arrangements)
sexual and personal behaviour (e.g. fidelity, commitment, feelings towards each other)
services (e.g. conduct and habit with respect to the sharing of household chores)
social activities (e.g. their attitude and conduct as a couple in the community and with their families)
economic support (e.g. financial arrangements, ownership of property)
children (e.g. attitude and conduct concerning children)
societal perception of the two as a couple
The background of the Federal Court case
The applicant AP is a gay man who fled his country fearing persecution due to his sexual orientation. He was granted refugee status in Canada and re-established contact with a female friend from university in his former country of residence. They regularly communicated with each other almost every day. AM tried to meet AP in Canada but was not able to do so because her visa was refused, twice. They therefore vacationed in a third country, and while on vacation had a sexual encounter.
A child resulted from this trip. The couple decided to raise their child together as a family unit, and AP filed an application to sponsor AM as his conjugal partner, fighting to have their relationship recognized through three levels of decision makers.
Stage 1- Rejection of conjugal sponsorship application by immigration officer in Canadian embassy.
The immigration officer rejected the application for conjugal sponsorship without conducting any interview to clarify any of the officer’s doubts regarding the application. The ground for rejection was that AP and AM were not conjugal partners. The decision of the officer was appealed.
Stage 2-Appeal of the officer’s decision to the Immigration Appeal Division (IAD)
The IAD rejected the appeal on the ground that a gay man and a heterosexual woman can not meet the sexual component of a conjugal relationship. The IAD reasoned that this relationship did not seem genuine because AP is not bisexual, he is gay, there was inadequate communication and trust between the couple because AM was not aware of AP’s homosexuality till their child was born, the relatives of AM were not aware of AP’s sexual orientation.
Stage 3- The Immigration Appeal Division’s decision was challenged in the Federal Court
The Federal Court agreed with the AP, finding that the decision of the Immigration Appeal Division was unreasonable and unfair. The Court reasoned that even though AP was gay and was not sexually compatible with AM, he cared for her and was committed to raising a family with her. The Court ruled that the IAD had taken a stereotypical and narrow view of whether the relationship of a homosexual man and a heterosexual woman was possible. Based on the definition of “conjugal” in immigration policy and family law, the presence of sexual relations is only one non-mandatory factor.
Canadian families today are increasingly diverse. What they have in common is a strong, long term commitment. The Federal Court’s decision in A.P. reflects this reality.