ACAS Settlement Program - FAQ
Please note: The answers listed here are for informational and reference purposes only, and is not intended as legal advice. Please consult your local Legal Aid Ontario community legal clinic, the HIV & AIDS Legal Clinic (Ontario), or a lawyer practicing the relevant area for legal assistance or representation.
Immigration and refugee law
3a. Can a LGBTTQ person apply for immigration to Canada?
A: Yes. Canada’s immigration law does not discriminate against applicants based on the basis of sexual orientation or gender identity. Further, same-sex couples can get married in Canada, or their relationships may entitle them to be recognized as common-law partners. As such, the person may apply to immigrate to Canada based on his/her own merit, such as a skilled worker, or through a sponsorship by his/her Canadian citizen or permanent resident spouse or common-law partner, parent or adult child. Please seek legal assistance from an immigration lawyer or legal clinic.
3b. Can someone with HIV/AIDS apply to immigrate to Canada?
A: It could be very difficult, with one exception. In general, a potential immigrant’s health is relevant in determining whether s/he would be admissible to Canada. Anyone with medical conditions that could place an excessive demand on the Canadian system would likely be considered medically inadmissible, and thus refused. People with HIV/AIDS would have to show that their health would not be an excessive demand, which may require legal expertise from an immigration lawyer with specialized knowledge on HIV-related issues.
The exception is when a person with HIV/AIDS is sponsored as a spouse or common-law partner, or as a dependent child. In this case, the excessive demand criteria are exempted for consideration so the person’s HIV positive status does not impose any excessive demand requirement.
Please seek legal assistance from an immigration lawyer or legal clinic.
3c. Can someone with HIV/AIDS make a refugee claim in Canada?
A: Yes. HIV status is considered a potential ground of persecution in a refugee claim. In addition, even if you are not HIV positive, you may be perceived to have HIV and treated as such by others in your home country. That could be the basis of a persecutorial claim. Also, a refugee claim may also involve more than one ground of persecution, such as sexual orientation, gender identity, religious belief, gender, political opinion, etc.
Please consult a refugee law lawyer on whether there is a claim for refugee protection based on HIV status and/or other grounds. Legal Aid Ontario (LAO) offers certificates to eligible claimants to pay for legal services of the lawyer. Please contact LAO at (416) 979-1446 or info@lao.on.ca to find out how to apply.
3d. Am I entitled to receive social assistance or health care?
A: That will depend on your immigration status.
Canadian citizens and permanent residents are generally entitled to receive the full range of social benefits offered by the provincial and federal governments, including social assistance (Ontario Disability Support Program or ODSP), medical coverage (Ontario Health Insurance Program or OHIP), prescription drug subsidy (Trillium Drug Program), etc.
Refugee claimants (including those who failed their refugee claim but is waiting for the decision of, or have not yet applied for, the Pre-Removal Risk Assessment or PRRA) are entitled to basic medical and drug coverage through the Interim Federal Health (IFH) program, work and study permits, and social assistance (ODSP).
People on temporary work permits qualify for OHIP. However, people on visitor’s permit (tourists) and study permits have much more limited rights and entitlements for social benefits. For medical needs, they can still access community health centres for free services, such as Women’s Health in Women’s Hands or Sherbourne Health Centre.
Please consult the HIV & AIDS Legal Clinic (Ontario) and the local AIDS Service Organization for more detailed information and resource listing.
3e. When I enter into Canada, will the border agent ask me about my HIV status?
A: Generally, the answer is no. Canadian citizens and permanent residents will not be asked of their HIV status because they generally have a right to enter or leave Canada.
Short-term visitors who wish to enter Canada for less than six months, e.g., tourists, will not be asked of their HIV status. (There are other admissibility factors that will still be relevant, such as criminality and the ability to satisfy the border agent that the person will not stay beyond the permitted period in Canada.)
3f. If I want to stay in Canada for longer than six months, such as for work or study, am I eligible for the necessary permit if I am HIV positive?
A: For people who want to apply for a permit as a temporary foreign worker, student, or extended tourist to stay in Canada for greater than six months, a medical examination may be required if the applicant has resided or traveled for six or more consecutive months in a “designated” country within one year prior to seeking entry to Canada. Of course, Canada immigration has the discretion to require a medical examination under any circumstances if they consider it necessary.
Temporary foreign workers applying to certain occupations must undergo the medical examination, and may be more likely to be found medically inadmissible. Please see following link on occupational criteria: http://www.cic.gc.ca/english/information/medical/medexams-temp.asp#occupational
Note: It is possible to obtain a permit for a longer-than-six-month stay in Canada for someone who is HIV positive. It will depend on the circumstances and/or particular occupation.
Please refer to Canada immigration’s web site: http://www.cic.gc.ca/english/information/medical/medexams-temp.asp
List of “designated” countries: http://www.cic.gc.ca/english/information/medical/dcl.asp
List of “Designated Medical Practitioners” authorized to do medical examinations: http://www.cic.gc.ca/dmp-md/medical.aspx
Please seek legal assistance from an immigration lawyer when making such an application
3g. If I become HIV positive during my immigration application process or before my refugee claim hearing, what will happen?
A: For permanent residence applications, the excessive demand criteria may become applicable to your case if you become HIV positive during the process (with the exception of sponsorships of spouse, common-law partner, or dependent child). Please refer to question 3b above and consult with the HIV & AIDS Legal Clinic (Ontario) and your legal representative.
For refugee claimants, it is not uncommon for the person to discover that s/he is HIV positive after undergoing the medical examination required. Since HIV status is recognized as a potential ground for persecution, the person should advise his/her refugee lawyer to determine whether the new information can be added to the existing claim. Please refer to question 3c above.
3h. I have a partner who lives outside of Canada. Can I travel to visit him/her?
A: As a Canadian citizen with a Canadian passport, you are free to enter and leave Canada. You may be subject to the visa and travel regulations of the particular country you are visiting. Please refer to question 3j below.
As a Canadian permanent resident, you are traveling on the passport of your home country so you must observe the visa and travel regulations of the country you intend to visit that is applicable to the citizens of your home country.
For permanent residents who are under the protected person status (successful refugee claimants), returning to your home country may affect your application for citizenship later on if Canada immigration finds that your visits might be inconsistent to your claim of risk to life or persecution. There are limited circumstances where you may be given express permission to return, such as a dying family member. Please consult a refugee lawyer to determine whether and how you should travel outside of Canada if you are a protected person.
3i. I am under 18 years old and was sponsored to come to Canada by my parents. I have just disclosed my sexual orientation, gender identity, and/or HIV status to my parents. They now threaten to “disown” me and kick me out of the house. Will that affect my immigration status?
A: If you are already a permanent resident, your landed status will not be affected even your parents threaten to “disown” you. Since they have already signed the Sponsorship Agreement, they will not be permitted to withdraw their sponsorship.
If your sponsorship application has not been approved, your parents may have the option to withdraw their sponsorship, which effectively ends the application process. In this case, please consult the HIV & AIDS Legal Clinic (Ontario) or an immigration lawyer to explore potential options.
In addition, Legal Aid Ontario has a legal clinic specialized in other issues that affect young people called Justice for Children and Youth: http://www.jfcy.org/
3j. Can I travel overseas if I become HIV positive?
A: That will depend on where you intend to travel. Different countries have different law regarding entry by a person with HIV/AIDS. Please refer to the European AIDS Treatment Group’s web site: http://www.eatg.org/hivtravel/ to see regulations or restrictions based on individual countries.
It is strongly recommended that you also call the local consulate or embassy in Canada for that country to verify that the information is current. You do not need to identify yourself when calling the consulate or embassy asking about general information.
