Procedure for HIV-positive cases

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Provision of the Health follow-up handout: HIV infection document

All foreign nationals, including those applying for permanent or temporary residency, found to be HIV positive during the immigration process must be issued a copy of the Health follow-up handout: HIV infection document.

Automatic partner notification of sponsored family class applicants who test positive for HIV

Applicants in the family class and the dependent refugee class who test positive for HIV may not be assessed as medically inadmissible due to excessive demand on Canada’s health care system [A38(2)]. Their sexual partners residing in Canada must be made aware of the risk this serious medical condition may place on their health.

Automatic partner notification will give applicants in the family and dependant refugee classes who test positive for HIV 60 days from the date of being informed of the policy to voluntarily disclose their HIV-positive status to their spouse or partner or to withdraw their application. After this period, the Department will formally notify the spouse or partner of their dependants’ HIV-positive status before proceeding with the application.

To facilitate Immigration, Refugees and Citizenship Canada (IRCC)’s commitment toward public health and safety, this policy provides HIV-positive applicants with an appropriate window of opportunity to voluntarily disclose their medical status or withdraw their application.

Medical officers will continue to notify immigration program managers of cases where individuals test positive for HIV in both the family class and dependant refugee class. Although these cases are few, it is important that these instructions be followed accurately.

General overview of the policy

All permanent resident applicants who are 15 years of age or older, as well as children who have certain risk factors, such as having received blood or blood products, having a known HIV-positive mother or being potential adoptees are required to undergo an HIV test as part of the medical examination.

As part of this medical examination, the responsible panel physician will provide post-test counselling to HIV-positive applicants as per the handbook for designated medical practitioners. The panel physician will have the applicant sign the Acknowledgement of HIV post-test counselling form [IMM 5728E (PDF, 528.39KB)].

Applicants will then be required to attend an interview with a visa or immigration officer, where they will be informed of the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes and will be asked to sign the Acknowledgment of the automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes to indicate they’ve been informed of this policy. The officer should be satisfied that the applicant has understood the implications and been informed of the policy and should address any concerns the applicant may have with regard to their application.

The visa or immigration officer will then give the applicant 60 days to disclose their HIV-positive status to their spouse or partner residing in Canada or withdraw their application.

After 60 days have elapsed from the date of the interview, the officer will send a partner notification letter to the known spouse or partner in Canada.

In administering the automatic partner notification policy, it is essential that visa and immigration officers ensure the following:

  • that all applicants have signed the Acknowledgment of the automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes;
  • that all applicants clearly understand the implications of the policy, including the direct consequences of withdrawal of their application and of being HIV-positive (see Guidelines for witnesses);
  • that all applicants have been given 60 days to voluntarily disclose their status or withdraw their application before a formal notification is sent to the spouse or common-law or conjugal partner residing in Canada;
  • that case notes clearly reflect all counselling given to the applicant, the decisions agreed to by the applicant and the steps taken in completing the notification process.

Procedures

1. Post-test counselling by a panel physician

The responsible panel physician will provide post-test counselling to HIV-positive applicants and will counsel them on the medical, social and psychological implications of being HIV-positive. Topics will include only those that have a pertinent medical theme and will not include any implications for the immigration application. The panel physician will have the applicant sign the Acknowledgement of post-test counselling form [IMM 5728E (PDF, 528.39KB)].

2. Identification of an HIV-positive applicant

  • Responsible medical officer

    The responsible medical officer will notify the responsible immigration program manager in writing when an applicant who is exempt under subsection A38(2) tests positive for HIV, including any risk assessment made on public health or public safety grounds.

  • Family class procedures

    For those who took advantage of the family class procedures, some applicants may already know their HIV status before missions have received their completed applications and created family class files. In such cases, missions should not initiate any partner notification process until a file has been created at the visa office and the applicant has completed all necessary counselling as per the instructions below.

3. Interview with a visa or immigration officer

  • Verification of post-test counselling

    Given the serious medical, ethical and legal concerns involved when dealing with HIV-positive applicants, officers should ensure that all of these applicants are interviewed in person. Visa and immigration officers should not discuss the issue of partner notification with applicants who do not possess an Acknowledgement of HIV post-test counselling form [IMM 5728E (PDF, 528.39KB)].

    If, during an interview, it becomes apparent that the applicant does not adequately understand the nature of their medical condition, the interview should be suspended. In these cases, the officer should advise the applicant to revisit the panel physician originally seen to seek further counselling and should request that another Acknowledgement of HIV post-test counselling form [IMM 5728E (PDF, 528.39KB)] be provided.

    Once the officer is satisfied that the applicant understands the implications of their medical condition, the officer should proceed with an explanation of the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes.

  • Explanation of the automatic partner notification policy

    It is the officer's responsibility to explain to the applicant the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes.

    After determining that the applicant understands the policy, its potential consequences and the options available, the visa or immigration officer should ensure that the applicant

    • has reviewed and signed the acknowledgment of the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes;
    • has been provided with a copy of the automatic partner notification policy; and
    • has been provided with a copy of the signed acknowledgement.

    Note: If an interpreter is required, the Interpreter declaration form should be completed. The instructions in Guidelines for witnesses (to be used by visa and immigration officers) should also be used, as necessary.

    Applicants should be advised that signing the Acknowledgment of the automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes will not in any way affect the processing of their application to completion. Applicants who do not sign the form should be advised that the form exists only to ensure that the Department has a record that the applicants have been informed of the policy and have had the opportunity to discuss their options under the policy.

    The visa or immigration officer should make sure all case notes reflect the counselling, the decisions and the steps taken between the visa or immigration officer and the applicant in completing the notification process.

4. Consequences after interview

  • The applicant does not sign the acknowledgement of the automatic partner notification policy.

    Processing should continue with notes on file indicating that the applicant understood the policy but chose not to sign the acknowledgement. Such cases should be flagged to NHQ Litigation Management (BCL).

  • The applicant expresses personal concerns, such as concern about a risk to their safety should their HIV status become known, that cannot be satisfied by standard counselling.

    Visa and immigration officers should advise the immigration program manager of such cases. They will be dealt with in consultation with International Region - Operational Coordination (RIM) and other headquarters divisions as appropriate.

5. Consequences 60 days after interview

Officers should ensure that 60 days have passed from the date of interview before continuing with processing the application as explained below.

  • The applicant withdraws.

    Officers should process withdrawals by the applicant according to normal procedures.

  • The sponsor withdraws.

    If the visa office is informed by the Case Processing Centre in Mississauga (CPC-M) that the sponsor (i.e., spouse or partner residing in Canada) has withdrawn the sponsorship, the visa office should refuse the application as per standard procedures using the refusal letter for sponsorship withdrawal.

  • Neither the sponsor nor the applicant withdraws.

    If the visa office has not received notification from the CPC-M that the sponsor has withdrawn the sponsorship or if the applicant has not indicated that they wish to withdraw their application, case processing should resume to finalization.

6. Formal notification to the spouse or partner

If no withdrawals have been made by either the applicant or the sponsor, officers should prepare and send the partner notification letter, along with the HIV contact information in Canada handout, to known spouses or partners residing in Canada with copies on file. The visa or immigration officer should ensure that the spouse or partner’s address is the most current available by either requesting verification from the CPC-M for family class applicants or verifying the paper file of the dependant refugee class applicant.

Guidelines for witnesses (to be used by visa and immigration officers)

(For use by officers witnessing an applicant’s signature)

The following rules are general in nature and should be used by officers when completing any forms used to process HIV-positive applicants in the family and dependant refugee classes. They should not be considered all-inclusive.

It is important to ensure that the applicant fully understands the implications of being HIV-positive and/or of the Automatic partner notification policy for HIV-positive applicants in the family and dependant refugee classes. The officer should also find out whether an interpreter is required prior to convoking an interview and should use the interpreter declaration form when necessary.

General guidance

  • Do not obtain the applicant’s signature until the discussion of the automatic notification policy and the implications of testing positive for HIV have been completed.
  • Do not obtain a signature of consent from an applicant who is under the influence of medication that might affect their mental ability to make a decision regarding their understanding of the policy and any options available.
  • Fill in blanks in block letters that are clearly legible, in blue or black ink.
  • Make sure that the form is complete before the applicant signs it.
  • Have the form signed before the disclosure to the spouse or partner takes place.
  • If the applicant has any questions after the form is signed, delay acting on partner notification until the questions are answered.
  • Do not use terms that the applicant will not understand when explaining the automatic partner notification policy.
  • Do not make any additions, deletions or alterations to the form after the applicant signs it.
  • Make sure that the statement being signed by the applicant is correct.
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