Canadian HIV immigration policy called out-of-date, discriminatory

When they found love in Mexico 10 years ago, one of the first things the Canadian man’s boyfriend confided in him was that he was HIV-positive.

But the medical condition was no longer seen as the health threat it had once been, and it wasn’t going to stop their budding relationship.

The couple maintained a long-distance romance for four years before the Mexican partner moved to Toronto in 2017 on a work permit.

It was when they started their spousal sponsorship application in 2020 that the couple learned of Canada’s automatic HIV-partner-disclosure policy.

It’s a policy that mandates an immigration applicant or refugee prove they have disclosed their medical condition to the person who is sponsoring them to Canada.

The couple say they found the formal process not only offensive but frustrating, as it delayed the processing of their file for an additional 18 months.

Finally, they were scheduled for the long-awaited brief interview in April to confirm, in person, that the sponsored partner’s HIV status had been disclosed.

“It’s not just a privacy issue. I also just feel incredibly stigmatized,” said the 55-year-old Canadian fashion designer, who asked not to be identified to protect his partner’s privacy.

“I don’t feel it’s anybody’s business, and I don’t feel it’s something that needs to be addressed for my partner.”

The so-called “automatic partner notification policy” has been in place since 2003 as a public health measure to stop the spread of the HIV virus, which, if untreated, can lead to acquired immunodeficiency syndrome or AIDS, a disease that has killed millions.

However, modern medical treatment has transformed the virus into a manageable medical condition, and advocates say that, after two decades, the immigration department’s “out-of-date and discriminatory” policy should go.

In mid-June, three organizations wrote to Immigration Minister Sean Fraser and Marci Ien, the minister for women and gender equality and youth, demanding the policy be revoked and saying that it was discriminating against people with HIV and violating their right to equal treatment under the Canadian Charter.

“Not only does the Policy significantly extend the length of processing of immigration applications for people living with HIV, it also perpetuates myths and stereotypes that people with HIV are deceptive and are less worthy of intimate relationships,” the letter noted.

The signatories of the letter include the HIV & AIDS Legal Clinic of Ontario (HALCO), the HIV Legal Network, and the Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA).

Michael Battista, their counsel, said the policy is discriminatory because only those applicants sponsored under the family and refugee classes are subject to the disclosure to partner policy.

Temporary residence visa applicants — visitors, international students, temporary foreign workers — and those applying for permanent residence under economic class are not under the same scrutiny even though they, too, could potentially be HIV positive.

“We let in HIV-positive foreign students, foreign workers. We don’t ever force them to reveal to their intimate partners that they’re HIV positive. Why are we singling out the family class and dependent refugees?” asked Battista.

“It’s not even serving the ends of its public health concern.”

The policy is unique to HIV-positive applicants. There is no similar mechanism for other health conditions.

Immigration applicants with active pulmonary tuberculosis (TB) and untreated syphilis can be found inadmissible to Canada, unless they are treated, on the grounds that their condition is a danger to public safety, according to the standards laid down by Health Canada.

However, unlike TB and untreated syphilis, immigration officials do not consider HIV a danger to public health.

When the original policy was implemented, it required consent of the HIV-positive applicant for immigration officials to contact their sponsor in Canada about their HIV status and assess whether the sponsor would withdraw their application.

To avoid the impression that the policy was prompting sponsors to withdraw their applications, the updated policy has, since 2016, given the HIV-positive applicant 60 days to provide proof they have informed their sponsor of their diagnosis or to withdraw their application. If the applicant takes no action, immigration officials will then inform the sponsor about their HIV status after 60 days have elapsed.

HIV-positive sponsorship applicants must also attend a compulsory interview that is not required of other sponsorship applicants.

Battista said immigration officials had not strictly adhered to the policy until about 18 months ago, when he started to see the processing times of the HIV positive clients’ cases “inexplicably lengthened.”

“The explanation we got was they were being put into the interview stream automatically. We tried to be proactive and provide evidence that the sponsor was advised of the HIV-positive health condition of the person being sponsored,” said Battista. “But they just didn’t budge.”

He said the policy perpetuates a stereotype that people with HIV are morally blameworthy and irresponsible in taking precautions to prevent the transmission of HIV.

On its website, the immigration department said the policy does not intend to “inflict unnecessary hardship” on applicants or sponsors.

“Rather, it is a measure that will protect the health and safety of the spouses and partners (residing in Canada) of applicants in the family and dependent refugee classes who test positive for HIV,” it noted.

While the change of language in the 2016 policy was an improvement, Avineet Cheema, staff lawyer at HALCO, said it still doesn’t reflect modern science.

“This is a policy that was implemented at a time when there wasn’t as much modern science advancements when it comes to HIV and suppressing viral loads and things like that,” said Cheema, who has seen cases in which an officer asked the sponsor why they’re comfortable marrying an HIV carrier.

“Being diagnosed with HIV is in no way a death sentence at this time. And it is very manageable with medications to the point that there isn’t even a real decrease in life expectancy.”

There are other sexually transmitted infections, said Cheema, and singling out HIV further stigmatizes those living with the virus.

“That really targets the dignity of people who are living with HIV, because the Canadian government is essentially telling them, ‘You’re different. You are dangerous. Your health condition makes it so.’”

The policy, she added, disproportionately affects gay, trans, Black and other racialized people, due to the heightened impact of the HIV stigma.

The Canadian sponsor of the Mexican partner said they are committed and responsible adults, but were uncomfortable at their April interview at the immigration office in Niagara Falls.

“I felt there was homophobia hidden behind a mask of protocol,” he said. “I don’t think it’s fair that they single out people with HIV. It’s not fair for my partner to have to go through that.”

In an email to the Star, the immigration department said it doesn’t collect data on the notifications issued, interviews conducted and sponsorship withdrawals recorded under the policy.

A department spokesperson said the policy is currently under review and that any modifications will be made to the public when it is completed.

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung

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