Thu | Sep 20, 2018

Immigration Corner: I got HIV from my Canadian husband

Published:Tuesday | March 17, 2015 | 12:00 AM

Dear Miss Powell,

I met a Canadian man about three years ago. We fell in love and got married last year November. I have been faithful to him all these years. After we got married, he told me that he has HIV. He has shown no signs or symptoms and neither have I. However, after he told me that he has HIV, I got tested and realise I, too, have HIV. He is now putting together papers to sponsor me and I'm worried that I will be denied the opportunity to join him in Canada as he says a medical will be necessary. I love my husband and I forgive him for not telling me about this. I just want us to be able to live together. Is it possible for persons who are HIV positive to get a visa to Canada? Will this affect the sponsorship application? If it's possible, what steps would I need to take. I am a professional and I have been in excellent health since I was diagnosed.

- Anonymous

Dear Anonymous,

I am sorry to hear that both you and your husband have contracted HIV. However, I do not want either of you to be discouraged as life goes on and there are many persons who have the virus and are able to live successful and happy lives. In fact, Canada has excellent medical and support workers who are trained to help Canadians and their spouses to deal with this issue.


Medical Inadmissibility Rules


The Immigration and Refugee Protection Act (the Act) does not specifically mention HIV or AIDS. However generally speaking, an applicant may be refused both temporary and permanent visa and deemed 'medically inadmissible' if their condition is:

1. Is likely to be a danger to public health and safety or

2. Might reasonably be expected to cause 'excessive demand on health and social services'.

It is very rare for Citizenship and Immigration Canada (CIC) to ask an individual who is applying for a temporary resident visa to do a medical examination as part of the application process.

However, for sponsorship application, study permits, work permits, supervisas and applications under express entry, this is required.

In fact, CIC policy is that "all permanent resident applicants, who are 15 years of age and over, as well as children who have received blood or blood products, who have a known HIV-positive mother, or who are potential adoptees, are required to undergo an HIV test as part of the medical examination."


Exemption for Spousal Sponsorships


Applicants for permanent residence will be required to disclose whether he or she, or any family members listed in the application for permanent residence, "have ever had any serious disease or physical or mental disorder." Arguably, this includes HIV infection. Furthermore, all persons applying for permanent residence in Canada are required to undergo an immigration medical examination (IME), which includes doing an HIV test. A positive result could deem you medically inadmissible.

However, citizens or permanent residents of Canada may sponsor their spouse, including same-sex spouses, common-law partner, conjugal partner, dependent child.

This means that your husband will be able to sponsor you to go to Canada, under the Family Class. Your HIV status will not be a barrier to entering Canada. You are exempt from the excessive demands provisions of the Immigration and Refugee Protection Act. You should both consider living in an area where you will have adequate access to medical and treatment and counselling and support services to assist you both to live happy and productive lives.

If you need advice or assistance with respect to Canada's immigration policies, you should consider a private consultation with a Canadian immigration lawyer. Best of luck to you and your husband.

- Deidre S. Powell is a lawyer, mediator, and notary public, who is a member of the Jamaican and Ontario, Canada bars, with main office located in Ottawa, Ontario. Her areas of practice are in immigration, real estate, commercial, personal injury, family and administration of estates. She is on the roster of Mediators for Ottawa, Toronto, and the Dispute Resolution Foundation of Jamaica. Email: subjectline: immigration, Call 613.695.8777/ 876.922.8899 Facebook: jamaicanlawyer.