LD (Article 14; same-sex relationships) Brazil  UKIAT 00075
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 4 July 2006
Date Determination notified: 10 September 2006
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
Prior to the coming into force of the Civil Partnership Act 2004, it was not a breach of art 14 of the ECHR amounting to unlawful discrimination on the ground of sexual orientation to refuse to grant leave to a person in a same-sex relationship who could not satisfy the requirements of the Immigration Rules in circumstances where a party to a marriage would be granted leave under the Rules. The differential treatment was, at that time, objectively justified. (N.B. Because of the provisions of the Civil Partnership Act 2004 this is an example of the rare case where leave to remain is an essential requirement for the development of family life under art 8.)
The applicable law
"Requirements for leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295D. The requirements to be met by a person seeking leave to remain as the unmarried partner of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules; and
(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and
(iii) the applicant is the unmarried partner of a person who is present and settled in the United Kingdom; and
(iv) the applicant has not remained in breach of the immigration laws; and
(v) the parties are not involved in a consanguineous relationship with one another; and
(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; and
(vii) the parties' relationship pre-dates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and
(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(ix) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(x) the parties intend to live together permanently.
Leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295E. Leave to remain as the unmarried partner of a person present and settled in the United Kingdom may be granted for a period of 2 years in the first instance provided that the Secretary of State is satisfied that each of the requirements of paragraph 295D are met.
Refusal of leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295F. Leave to remain as the unmarried partner of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 295D is met."
"Requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom
284. The requirements for an extension of stay as the spouse of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiancι; and
(ii) is married to a person present and settled in the United Kingdom; and
(iii) the parties to the marriage have met; and
(iv) the applicant has not remained in breach of the immigration laws; and
(v) the marriage has not taken place after a decision has been made to deport the applicant or he has been recommended for deportation or been given notice under Section 6(2) of the Immigration Act 1971; and
(vi) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(vii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(viii) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.
Extension of stay as the spouse of a person present and settled in the United Kingdom
285. An extension of stay as the spouse of a person present and settled in the United Kingdom may be granted for a period of 2 years in the first instance, provided the Secretary of State is satisfied that each of the requirements of paragraph 284 is met.
Refusal of extension of stay as the spouse of a person present and settled in the United Kingdom
286. An extension of stay as the spouse of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 284 is met. "
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Immigration judge's decision
21. I summarise my relevant findings of fact, most of which are not contentious, as follows:
(1) The appellant has been living with [his partner] in a relationship akin to marriage, after a significant acquaintance, since January this year.
(2) They intend to register this relationship as a partnership under the CP Act within about a month of its planned date of commencement. I infer from the hisotry of the relationship that if they had been able to register it as a partnership by the time the appellant made this application, they would have done so.
(3) Apart from the period of cohabitation required by sub-rule (vi), all the requirements of r.295D of HC 395 are satisfied in this case.
(4) Parliament has legislated to align registered homosexual partnerships with marriage in law, and it is the British government's intention to assimilate the Immigration Rules for marriage and registered partnerships and to bring both sets of changes into force this December. The existing Immigration Rules do not require a married couple to have cohabited for two years or any particular period before a foreign spouse obtains leave to enter or remain as such.
(5) The appellant and [his partner] have at all times since February this year at latest wished to register their relationship under the Civil Partnerships Act of 2004 with a long-term mutual commitment. Had it been open to them in law, they would have done so by the time of this refusal.
22. I further hold that:
(1) If the respondent's refusal stands, there is an interference with the appellant's family and private lives. The physical separation and expense attributable respectively to the appellant's removal and their occasional reunion would be substantial; also there would be the appellant's loss of his job and the friendships that he has made here.
(2) Since it is the government's and Parliament's policy that people such as this couple should be able to register their relationship under the CP Act and live together in Britain without having cohabited for two years, the appellant's immediate admission for the purpose of continuing such a relationship is not a thing contrary to the merits of any pressing social need, or repugnant to public policy; only the bare formality of a rule that is accepted by the government to be out of date would be offended.
(3) While there is to be a delay for practical reasons in the commencement of this Act, apparently until December, there is no reason of policy for it.
(4) The differences in current British family law and the present Rules between the provisions for spouses and those for unmarried partners who intend to live in a long-term relationship, taken together, are an instance of discrimination on the grounds of sex (because as partners of the same sex the appellant and [his partner] can not marry or otherwise obtain legal recognition of their relationship) and of status (because if they were married or otherwise in a legally recognised partnership these two would not have to demonstrate any minimum period of qualifying cohabitation). In view of my findings about their relationship and common intention to register it under the new Act, it is these differences that have caused the respondent to refuse this appellant's application in such a way as to interfere with his family life.
(5) Accordingly this appellant's enjoyment of his rights under Art. 8 to respect and freedom from interference with his family life is not secured without discrimination on the forbidden grounds of sex and status. Rather it is those grounds that are responsible for the respondent's interference in the appellant's family life. As to para 4.3 of the Explanatory Statement, it is the Rules that are shown by the new Act and the DTI's publicity to be discriminatory, not the respondent's application of them.
(6) Clearly the Convention attaches importance to the status of marriage, or there would be no Art. 12. However now that Parliament has passed the Civil Partnerships Act, and given the DTI's statement of the government's policy towards people in the position of this couple, there can in Strasbourg terms be no legitimate reason or objective justification for the discrimination that I have found.
(7) I have relied on Art. 14, because if I had to decide this appeal only by reference to the current Rules and law, the appellant's decision to embark on a relationship when he did, as the law in force then was, and with the benefit of the leave that he then had, his case under Art. 8 alone would have failed. He would simply have been another person temporarily in Britain who had taken a chance and formed a relationship when the current law and rules did not permit him to remain for its long-term fulfilment. Separation for what would now be little more than six months would not be so severe as to be disproportionate. It is Parliament's change of the law, and the government's intended means of carrying it through in subsidiary legislation, that show the existing Rules to be wrongly discriminatory.
23. If follows that the respondent's decision under appeal infringes the appellant's right to family life under Art. 8 taken with Art. 14 of the ECHR. It was therefore unlawful under sec.6 of the Human Rights Act, and this appeal succeeds."
Grounds for reconsideration
Grounds (1) and (2)
"Historically, both the law and public opinion withheld their sanction from a relationship between a man and a woman which was not sanctified by marriage or at least regularised by civil ceremony, and homosexual relationships were criminalised or condemned. When extra-marital heterosexual relationships became more generally accepted by the law and public opinion, recognition of homosexual relationships (even of those no longer criminal) was still withheld. Even now there remain bodies of opinion in this country (and much larger bodies of opinion in some other countries) for whom such recognition is still a step too far."
"Ms M's complaint of discrimination is in my view anachronistic. By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society, which has now been brought to an end because it no longer does so but which could not, with the support of the public, have been brought to an end very much earlier If such a regime were to be established today, Ms M. could with good reason stigmatise the regime as unjustifiably discriminatory. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public, could scarcely have been reformed sooner."
"94. Lord Hoffmann said, in the course of discussing Walden v Liechtenstein App No 33916/96,
"I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right. But there is no suggestion in the report of Walden v Liechtenstein that the discrimination between married couples was ever justified and I find it hard to see why there was no violation of Convention rights as long as the old law remained in place."
95. Both sides sought to draw some comfort from that passage. Hooper recognised that until a date in 2001 (I need not go into the significance of the precise date) the United Kingdom social security law had favoured widows in a way that could be justified as positive discrimination. No right-minded person would now suggest that discrimination against homosexuals was ever justifiable, and so Lord Hoffmann's observations about the need for consultation, drafting and debate are not (Ms Monaghan submitted) in point. But that is to my mind a deeply unrealistic approach, and one that is at odds with the realistic approach of the ECHR in cases such as Estevez. Although discrimination against homosexuals could never have been justified, by today's standards, the fact is that for centuries a homosexual couple living together were (even if they escaped criminal sanctions and social ostracism) regarded as quite different from a married couple, or a heterosexual unmarried couple. Profound cultural changes do take time: as Sir Thomas Bingham MR said in R v Ministry of Defence Ex p Smith  QB 517, 554: "A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z."
96. In my opinion it was within the United Kingdom's margin of appreciation, down to the preparation, enactment and coming into force of the 2004 Act, whether to treat a same-sex couple (for social security purposes, and the allied purposes of the 1991 Act) as a family unit or as two individuals."
"155. Justification exists where discrimination is prima facie unlawful, but there is a special reason legitimising it - e.g. where (as in probably in Petrovic itself) men and women were treated differently for a reason for which there was historically rational justification but which has now disappeared. In such a case Petrovic accepts, and Lord Hoffmann in para 62 in Hooper agreed, reasonable time may be allowed for legislative change though it must not be exceeded as it was in relation to transsexuals (cf Goodwin)."
"The legislative story goes back at least to late 2001. In October 2001, Jane Griffiths' Relationships (Civil Registration) Bill was introduced in the House of Commons, in November 2001 a major cross-departmental review of the policy and cost implications of a civil partnership registration scheme was initiated, supported by the Women and Equality Unit of the Department of Trade and Industry. In January 2002 Lord Lester of Herne Hill introduced a Civil Partnerships Bill in the House of Lords but withdrew it on 11 February 2002 to allow completion of the cross-departmental review. At the conclusion of the review, in December 2002 it was announced that a strong case was seen for a civil partnership scheme and that a consultation paper would be published in the summer of 2003, as it was on 30 June 2003. There followed a three month consultation period, which showed strong public support for such a scheme. In the DTI report "Responses to Civil Partnership" dated November 2003, the government undertook to introduce legislation as
soon as parliamentary time allowed. The first draft of the Civil Partnership Bill was dated 22 April 2004, and ensuing Parliamentary process led to the Civil Partnership Act 2004 receiving the Royal assent on 18 November 2004. The Act is an extremely comprehensive piece of legislation, covering not merely the creation and regulation of civil partnerships, but many other subjects, some-interrelated, including social security, pensions, tax credits and the present, with the aim of achieving equality of treatment between opposite sex and same-sex couples. The implementation of the legislation required time, and took place just over a year later."
"[the United Kingdom Government] has been engaged in a necessarily time-consuming process of deliberation and consultation (initiated by the consultation document: Civil Partnership, a framework for the legal recognition of same-sex couples published in June 2003) leading to the preparation and enactment of the 2004 Act. It is a massive piece of legislation extending to 264 sections and 30 schedules. It received the Royal Assent on 18 November 2004 and came into force, as already noted, on 5 December 2005. The delay in bringing it into force was necessary in order to make far-reaching administrative changes including the adaptation of computer systems, the training of staff, and so on."
"Implementation involves significant changes in many areas, for example, in court rules, the registration service as well as training and guidance for employers. These changes will be put in place over the course of the year."
SENIOR IMMIGRATION JUDGE