Belgium
Below is a summary of the Belgian situation for partners of third country (non-European Union/European Economic Area) business migrants:
Belgium recognizes same-sex relations and marriages. The rules with regard to family reunification for domestic (common-law) partners and spouses apply to same-sex partners and spouses.
A spouse can join a third country business migrant if the spouses live together in Belgium, provided that both partners are older than 21 years or, if they were already married before the arrival of the business migrant in Belgium, older than 18 years.
The same principles apply to a domestic partner on the basis of a registered partnership that is considered equivalent to a Belgian marriage: only registered partnerships from Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify.
Domestic partners without a registered partnership, or with a registered partnership that is not considered equivalent to a Belgian marriage, can also invoke the right to family reunification provided they are not involved in another marriage or partnership. The partners, who must sign a registered partnership in Belgium, must have a long-lasting and stable relationship. The existence of such a relationship can be proven by either prior legal cohabitation (at least 1 uninterrupted year, in Belgium or abroad), or evidence of a relationship (the partners prove that they have known one another for at least 2 years, they have had frequent contact (by phone, mail, or e-mail), they have met at least 3 times over the last 2 years, and these meetings covered at least 45 days in total), or a common child. The partners must be older than 21 years or, if they have already cohabited at least 1 year before the arrival of the business migrant in Belgium, older than 18 years.
Brazil
Some changes are expected to be implemented soon concerning the processing of visas for common-law partners. For the time being, the norms that apply are those provided for in Normative Resolution No. 77.
Normative Resolution No. 77, issued by the Brazilian National Council of Immigration on January 29, 2008, established the criteria for the granting of temporary or permanent visas to partners, in a common-law marriage without sex discrimination, of a Brazilian citizen or of a foreign national bearing a temporary or a permanent visa to live in Brazil.
If there is a certificate of common-law marriage issued by a governmental entity, no other document is required to prove the existence of the common-law marriage. If not, the common-law marriage may be proven through other documents: (i) a public deed issued by a Notary Public; (ii) declaration, under the penalties of law, of two witnesses who can prove the existence of the common-law marriage; (iii) at least two of the following documents: (a) evidence of dependence issued by a tax authority; (b) certificate of religious marriage; (c) testamentary provision that may prove the existing relationship; (d) life insurance policy in which one of the partners is the establisher of the insurance and the other is a beneficiary; (e) deed of purchase and sale registered in the appropriate Property Ownership Registration Office, showing both partners as owners; or a rental property contract in which both partners appear as lessees; or (f) joint bank account, it being noted that documents (b) to (f) must show that they have been in place for at least one year.
In addition to the proof of the existence of the common-law marriage, the summoning partner must, among other documents, submit a public deed prepared at a Notary Public of a commitment to support the foreign national and assure his or her departure at the end of the validity of the visa. FULL LIST OF DOCUMENTS
The application for this type of visa must be submitted to the Brazilian Council of Immigration, which meets once per month except in January and December. SCHEDULE OF MEETINGS FOR 2014
Canada
Immigration Benefits for Same-Sex Partners
Since the entry into force of Canada’s Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.
With the IRPA, the family class permanent immigration category was expanded to include same-sex couples. Gay and lesbian Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable. The new references in Canadian immigration law in 2002 to “common-law partners” and “conjugal partners” pursuant to subsection 1(1) of the Immigration and Refugee Protection Regulations encompass both opposite- sex and same-sex couples. Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. An applicant for economic class immigration can include his or her same-sex spouse or common-law partner as a dependent in his or her application.
In addition, same-sex rights are recognized with respect to temporary immigration status in the according of spousal work permits. The spouse or common-law partner of the holder of a Canadian work permit or study permit may apply for an open work permit irrespective of whether they are in a same-sex or opposite-sex relationship, subject to certain conditions.
Immigration Benefits for Domestic Partners
In Canadian immigration law, domestic partners are known as “common-law partners.” A “common-law partner” is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.
Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.
As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.
China
China does not recognize either same-sex or domestic partners. To bring in a spouse as a dependent, there must be a valid marriage license, unless both partners are of the same gender, in which case China will not recognize the relationship. There is currently no way around these requirements under China’s immigration laws.
France
General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage.France’s Civil Code now recognizes marriage between persons of the opposite or the same sex. Article 202-1 of the Civil Code provides that the conditions for marriage are governed by the personal law of each spouse, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.
The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.
Foreign nationals frequently may find themselves in situations where their marriages in France are not recognized by their countries of origin unless such countries have adopted legislation similar to the new French legislation.
A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.
The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.
The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.
Derivative residency and work rights known as “accompanying family rights” are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
The same sex marriage between foreign national and French national is will allow the issuance of visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.
Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.
Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights”.
Hong Kong
Hong Kong does not recognize same-sex and unmarried domestic partners’ relationships for immigration purposes. Accordingly, such a partner of a person holding permanent resident status or an employment visa cannot be granted dependent status. However, the Hong Kong Immigration Department does have a policy of exercising discretion for those living in a relationship akin to marriage and will grant an extended visitor’s visa to the partner of a person who is granted an employment visa. The person seeking such status must demonstrate he/she has the financial means to support himself/herself or that the partner can support and provide accommodation to him/her and the bona fides of the relationship as documented by extensive documentation of a pre- existing relationship of some time .The holder of this extended visitor’s visa cannot work so in practice, very few applications are lodged for extended visitor status.
India
The question of immigration benefits for same-sex couples remains unresolved in India. India not only disallows same-sex marriages but also criminalizes relationships between same-sex partners, terming them unnatural. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.
The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was “no constitutional infirmity” in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.
Because Indian law does not recognize same-sex marriages, there are no provisions in Indian law according immigration benefits to same-sex partners. It is therefore not possible to qualify for an entry visa to accompany one’s partner who may be entering India on a long-term employment visa. At the most, the partner can come to India on a tourist visa (for a maximum period of 180 days).
However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat’s partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has shrilly suggested that the same-sex partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.
Until recently, Indian law did not recognize relationships between domestic, live-in (opposite- sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.
In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.
As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partners or domestic/unmarried partners with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution.” Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.
Italy
Italian immigration offices are now increasingly approving family permit of stay applications of non-European Union (EU) nationals married to same-sex EU nationals. These permits are valid for five years and lead to permanent settlement, but can only be obtained as long as the marriage took place in a country accepting same-sex marriages.
Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.
Japan
Japan does not recognize same-sex marriages or domestic partners for the purpose of conferring immigration benefits. The same-sex spouse/partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis is extremely low.
Mexico
On December 21, 2009, the legislative assembly in Mexico City approved marriage between same-sex partners and their right to adopt children. It was the first city in Mexico and in Latin America to approve marriage between same-sex partners. These reforms in the capital’s civil law have spread to other entities in Mexico. From an immigration standpoint, the new Migration Act of November 2012 upholds the human rights of immigrants and establishes regulations for domestic and same-sex partners to obtain Mexican visas on the basis of bonds with Mexicans or foreign residents in Mexico.
Any same-sex or domestic partner who wishes to apply for a visa can do so with almost the same requirements as a married straight couple. The most difficult challenge is to obtain proof of partnership in the country of origin.
Netherlands
In the Netherlands, there is no legal difference between a same-sex marriage and an opposite- sex marriage. The rules with regard to family reunification between people from the same sex and opposite sex are similar too.
Partners of the same sex or opposite sex fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.
For marriages and registered partnerships, the criteria for family reunification are similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.
In addition to the above criteria for registered partners and spouses, the minimum age to apply for family reunification is 21 years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.
Peru
In Peru, relationships between domestic partners and same-sex partners are not recognized for immigration purposes. Only marriage according to Peruvian civil law and related regulations is recognized for purposes of obtaining a resident visa through a family-based proceeding.
Russia
Russia does not recognize same-sex marriage. This means that for visa purposes, same-sex and unmarried partners are not treated as dependents.
South Africa
South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.
The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.
The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These “relative’s permits” are usually issued for about two years at a time. A relative’s permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.
If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.
When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a partner regardless of the couple’s sexual orientation. The “accompanying spouse” must (principally) prove that the spousal relationship exists. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.
United States
Same-sex or opposite-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the “significant other” who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.
The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it be his or her own address or that of a relative or friend. Partners are not eligible for benefits as an immigrant unless they are in a marital relationship that is valid under the laws of the jurisdiction where the marriage was performed. This is recognized even if the marriage is not recognized in their place of residence. A domestic partnership does not confer any benefits as an immigrant.