Date: Tue, 6 Feb 1996 17:53:54 +0000 From: Mark Watson Subject: Stonewall Immigration Group [1/2] Dear Danny, Below is some information that can be put on your site. We have a web page with our info on which should be linked with your page. Obviosly you can decide the best approach. Please note the email address should be mark@stonewall.org.uk and we should be referred to as UK not England! Thank you for all your hard work All the best Mark CAN WE HELP YOU? YES, if you are in a same-sex relationship and one of you is a recognised British resident and the other is not. The three areas where we can be most help are: 1 Where the foreign partner is outside the United Kingdom and wants to come here to be reunited with their lover. 2 Where the foreign partner has been in UK lawfully, (i.e. as a working holiday maker, student, visitor) and wants to stay with their UK partner 3 Where the foreign partner has illegally overstayed or illegally entered the UK but wants to stay here with their UK partner. The Group is also interested in those who fear persecution in their own country because of their sexuality. ABOUT THIS BRIEFING PAPER This paper sets out the current position on how immigration practice affects lesbians and gay men in the UK. It is designed to give as much information as is available, in as many areas as possible, relating to same-sex immigration. If you have any questions that are not answered in this paper, please don't hesitate to contact the Group. It is possible to get initial advice from our advice line which operates from 2pm -5pm Monday to Friday - phone 0171 336 8860. We have made every effort to ensure that the information in this paper is correct at the time it was produced. However because the immigration rules and policy change from time to time you should check the current position with the Group. CONTENTS Page THE STONEWALL IMMIGRATION GROUP 2 THE HOME OFFICE 3 PREPARING YOUR APPLICATION 5 EUROPEAN LAW 8 DEPORTATION AND REMOVAL 11 GOING ELSEWHERE 12 REFUGEES AND ASYLUM 13 OTHER OPTIONS 15 HIV & AIDS 16 LEGAL DIRECTORY 17 WHO ARE WE? The Stonewall Immigration Group started after a few couples contacted Stonewall with immigration problems. The Group developed in late 1993 when six couples came together to challenge the Home Office position. On June 17 1995 the group adopted a constitution and elected its Executive Committee. The Group meets bimonthly to share information, decide the direction of the Group and give advice and information to new members. The Executive Committee meets every other Thursday at 7pm at the Stonewall Office. These meetings are also open to anyone who wishes to attend. OUR STRATEGY Members of the Immigration Group are currently challenging immigration policy by submitting applications for permission to stay in the UK based on their partnership with a UK resident. There is considerable support for such applications from MPs, Peers and the media. The group will also organise a press and publicity campaign, coordinate legal challenges, lobby MPs and Peers and build support for a change in immigration policy. We have produced a lobby document, Compelling Circumstances, which sets out the arguments for equality in UK immigration law. ____________________________________ OTHER GROUPS The Group understands that the Immigration Rules affect other minority groups unfairly and works closely with other civil rights organisations including the JCWI, Immunity, Liberty, Manchester Immigration Aid Unit, the Campaign for Racial Equality and the Black Lesbian & Gay Centre. SPHERE OF ACTION ARTICLE I The Stonewall Immigration Group is a mutual support and campaign group for lesbians and gay men with immigration problems that they would not face if heterosexual. PURPOSES ARTICLE II The Stonewall Immigration Group exists 1. To provide information, advice and support for lesbians and gay men seeking to enter or remain in the United Kingdom on the basis of their relationship 2. To provide information, advice and support to lesbians and gay men who wish to remain in the UK and fear persecution in their home countries because of their sexuality 3. To lobby for lesbian and gay equality in immigration law and practice. 4. To campaign to focus attention on the issue and to build widespread support for change 5. To provide advice and information to solicitors, law centres etc. representing lesbians and gay men with immigration that they would not face if heterosexual. 6. To liase with other UK immigration organisations campaigning around immigration issues. 7. To liase with European and International lesbian and gay immigration groups. Under the Immigration Rules a British lesbian or gay man in a relationship with a foreign partner has no right to live in the United Kingdom with the person they love. However since the formation of the Stonewall Immigration Group there have been significant statements of policy and changes in the practical way that the Home Office deals with applications. CURRENT HOME OFFICE POLICY The current Home Office policy was set out by the then Minister for Immigration Mr Charles Wardle in a House of Commons debate on the 4th May 1994. The policy on the admission of homosexuals to join or remain with a partner settled here is kept under constant review and each application is considered carefully on its individual merits. Discretion will not normally be exercised in an applicants favour unless compelling and compassionate circumstances are present. ...the Immigration Rules provide for the admission of spouses. In such cases the very fact of marriage and the presence of children of the marriage are factors which go to establishing the genuineness of the relationship. In cases of heterosexual common law relationships, the presence of children of the relationship, and whether the couple intend to marry are factors which may be taken into account in deciding whether a relationship is genuine and subsisting. Clearly, such factors are not present in homosexual relationships. ...English law does not afford any legal status to homosexual relationships. Immigration practice in relation to homosexuals reflects this general position. It would be illogical to try to construct an Immigration policy which did not accord with the general position. It is true that some countries do, in some circumstances, recognise homosexual relationships, but most countries, including the majority of our European Union partners, afford them no legal status. [Hansard, 4th May 1994 columns 823-26] Subsequent to that policy statement Mr Graham Allen, the opposition spokesman on Immigration, asked the Minister to clarify what he considered a compelling and compassionate circumstance. On the 16th May 1994 a written answer was given as follows: The factors which may be taken into account in assessing whether compelling and compassionate circumstances are present in such an application are the health of the settled partner and the length and the stability of the relationship. NEW IMMIGRATION RULES On the 1st October 1994 new Immigration Rules came into force. As expected these did not include a Rule for applications on the basis of a homosexual relationship. Of concern was Rule 322 which stated that if a person is applying to remain for a purpose not covered by the Immigration Rules their application is to be refused. On the face of it this means that any application made to remain on the basis of a same-sex relationship is bound to be refused. This is in conflict with the Ministers stated policy to consider all applications on their individual merits. In October 1994 we met with officials from the policy section where it was confirmed that despite paragraph 322 applications will continue to be considered on their individual merits outside of the Immigration Rules. It was also confirmed that provided an application is made in time whilst the applicant is legally in the United Kingdom the applicant will have a right of appeal if the application is refused. Following further correspondence between us and the Ministers private office the policy was further clarified in a letter from Neil Amos the Private Secretary to Nicholas Baker, the new Immigration Minister on the 19th April 1995. That letter stated as follows: Applications to remain on this basis [homosexual relationship] are considered outside the Rules under the Home Secretarys general discretion to allow any foreign national to enter or remain here. Factors which may be taken into account in assessing applications for leave to remain on the basis of a homosexual relationship are the health of the settled partner and the length and stability of the relationships. An application will not be granted unless the relationship is long standing or there are other compelling compassionate features. Documentary evidence of the relationship, cohabitation and other relevant circumstances may be required. It is not possible to provide an exhaustive list of the circumstances in which leave to remain on the basis of a homosexual relationship may be granted. Each case is carefully considered on its merits. This appeared to a be a subtle shift away from there having to be exceptional compassionate circumstances such as a British partner dying of AIDS towards greater emphasis on the long-standing nature of the relationship which could in itself justify the grant of an application. The question of what is a long-standing relationship has formed the subject of further correspondence between us and the Home Office. We have argued that there are a number of precedents for two years being an appropriate test for when a relationship is long-standing (e.g. the policy on deportation in marriage and cohabitation cases - DP/2/93). In April 1995 the group sent its Compelling Circumstances document to all MPs. A large number of MPs were written to by members and supporters of the Group asking them to take the issue up with the Minister. A standard reply has been sent to all the MPs in which the Minister restates his policy. It is still not possible to advise someone that an application is certain to succeed or certain to fail. It will depend on the individual merits of the case and how the Home Office perceive them. THE HOME OFFICE POLICY IN PRACTICE Since the Stonewall Immigration Group was formed we have been able to monitor decisions taken by the Home Office. In 1994 we were aware of no positive decisions made in relation to any applications (save where the British partner was seriously ill). A large number of applications were submitted in 1994 by Group Members and most of these are still awaiting decisions or were refused and are now awaiting the determination of appeals to an adjudicator. In 1995 whilst many couples are still fighting for the right to remain in the United Kingdom and further couples receive refusal decision a number of applicants have been allowed to remain in the UK on the basis of their relationship. Hopefully this reflects a greater willingness by the Home Office to apply the policy less restrictively than before. Prior to 1995 the only circumstance that the Home Office seemed willing to accept as compelling was where the British partner was seriously ill with AIDS. In such circumstances the foreign partner was only granted permission to stay in order to act as a carer with a prohibition being placed on them taking employment. The cases granted in 1995 are quite different. The following cases have been successful since April 1995: Nationality Length of relationship USA 5 years Brazilian 3 years Polish 3 years Malaysian 3 years Sri Lankan 10 years Malaysian 6 years Colombian 3 years Peruvian 4 years New Zealand 16 years Australian 4 years In each case the successful applicant has been given one years leave to remain. It is not known whether the Home Office will grant them permanent stay at the end of the one year. The Home Office say that any application for further stay will be considered "in the light of all the relevant circumstances at the time". These decisions give us hope for the future. However, many applications of equal merit have been refused. It is not known what guidance officials have from the Minister in reaching a decision but there appears to be a lack of consistency in the decisions being made. 1) The Home Office will consider all applications on their individual merits. 2) In time applications will attract a right of appeal if refused. MAKING AN APPLICATION Given the present situation, you are strongly advised to explore all the legal options that the Immigration Rules provide before embarking on an application on the basis of your relationship. The options are, however, very limited and the scope for extending visas or switching from, for example, a visitor to a student, is restricted (see Other options). If you are considering making an application to remain in the UK on the basis of a same-sex relationship, you need to recognise the difficulties you are likely to face. We advise you to talk to other members of the Stonewall Immigration Group and attend one of our support meetings to discuss these difficulties before making an application. You should also consider consulting one of the solicitors who supports the Group. You should check the current position with the group before making an application. 1. BASIC REQUIREMENTS 7 You should be able to demonstrate that you have a long standing and committed relationship which you believe to be a permanent one. 7 You need to demonstrate that; as a couple, you will have the financial resources to support and accommodate yourselves without relying on public funds. 2. SUPPORTING EVIDENCE A number of applicants have received a letter from the Home Office asking for standard information which is almost identical to the information that the Home Office requests from married and common law heterosexual applications. The standard questions asked are as follows: i) How long have the applicant and his or her partner known each other. ii) When and where did they meet? iii) How long and where have they cohabited? Please provide documentary evidence that they have both lived together at all the addresses stated. iv) How will they maintain and accommodate themselves and any dependants? Please provide evidence of employment and current accommodation. v) Please provide a letter signed by the sponsor saying whether they support the application, are living with the applicant and plans to do so permanently. vi) Please provide documentary evidence of any joint finances held. vii) Please submit letters from professional people or other readily identifiable third parties who know of the relationship and who are prepared to confirm that you are living together. viii) Please provide photographs of both parties during their relationship together. ix) Are there any factors, e.g. of a compassionate nature, which they would like to draw to our attention. Whilst these standard questions may simply reflect a standardising of approach by Home Office officials in response to the increase in applications the nature of the standard questions does indicate a shift to satisfying the Home Office that the relationships are genuine, subsisting and long-standing. It would obviously be useful to submit as much information as possible but your application should include the following: COVERING LETTER You both should include a covering letter which includes a detailed history of your relationship and should contain the following information:  where and when you met  how and why the relationship developed  if you have spent time apart, why you had to be separated and how you felt during this time  your shared social activities and hobbies  milestones in your relationship, such as moving in together or going on holiday together  what makes the relationship special for you  what makes your partner special to you  future plans you may have  how you would feel if you were forced to separate SUPPORTING LETTERS FROM FRIENDS AND FAMILY Supporting letters from friends and family carry a lot of weight especially at the appeal however if it is not possible to get letters from family then letters from professional people who know you will do. Letters should be addressed to the Secretary of State for the Home Department and include the following  how long they have known you  how long they have known you both  how long they have known you to have had a relationship  reasons why they believe your relationship is genuine and committed  their profession  that they have experienced you as a couple in social situations  how they think you would feel if you were forced to separate  they should say if they are married and state that they consider your relationship akin to marriage  they should state that they understand that the application is outside the Rules and at the discretion of the Secretary of State  they should state that they understand that the Secretary of State does allow unmarried heterosexuals to remain outside of the Rules and ask him to consider your application likewise EVIDENCE OF COHABITATION You should provide evidence for the periods you have lived together.  joint leases and rental receipts, or a letter from your landlady/lord or agent stating that you both live at the same address.  joint mortgage agreements or evidence of joint ownership  joint electricity, gas and telephone bills  letters addressed to you both at the same address  official documents, such as drivers licences, which are addressed individually but show the same address. EVIDENCE OF JOINT FINANCIAL ARRANGEMENTS  joint bank account statements - you should show that the account has been used reasonably frequently and for a reasonable length of time  joint credit card account statements, loan agreements and investments  joint insurance policies  joint receipts for large household purchases such as TV or furniture  wills nominating your partner as a beneficiary EVIDENCE OF SUPPORT AND ACCOMMODATION It is essential to provide evidence of how you will accommodate and support yourselves without recourse to public funds. The British partner should be employed and the foreign partner should also be employed, if allowed, or be able to show that evidence of employability.  pay slips  individual CV's  qualifications  evidence of foreign partners employment prospects OTHER EVIDENCE  Other documents you can submit as evidence include:  passport stamps or tickets showing visits to your partners country  telephone bills showing calls to each other when you have been separated  letters you have written to each other when you have been separated  photographs of you together at various stages in your relationship - these must be clearly dated, captioned and accompanied with an explanation.  evidence of joint membership of organisations or groups; or joint participation in sporting, cultural or social activities  evidence of why, if it is the case, you can not have your relationship in your partners country. 3. WHEN TO APPLY Whilst such applications can, theoretically, be made from abroad, with the foreign partner seeking an Entry Clearance at a British Consulate, generally such applications are made from within the UK. Applications should be made while the foreign national still has an existing leave to remain or enter under another heading. If the Home Office refuses the initial application based on the relationship then there should be a right of appeal against the refusal. If you apply after your leave has expired you will have NO appeal rights. 4. HOW TO APPLY Applications should be made in writing to the Home Office, Lunar House, Wellesley Road, Croydon. You are strongly advised to make the application through a gay-friendly solicitor experienced in immigration law. The Immigration Group has a list of affiliated solicitors and law centres. The application should make it clear that you are applying as the partner of a British citizen or person settled in the UK. You should make it clear that there are no Immigration Rules applicable to same-sex relationships but that you want the application to be treated analogous to the Rules for married heterosexuals. You should point out that you satisfy the conditions imposed on married heterosexuals, in other words, the genuineness of the relationship and the ability to accommodate and maintain yourselves without recourse to public funds. 5. HOME OFFICE RESPONSE The Home Office is likely to refuse your application unless you can show compelling, compassionate circumstances over and above the fact of your relationship. The Home Office will probably refuse the application because there is no provision in the immigration rules however you will get the right of appeal against this provided it was an in-time application. The Immigration Appeal Tribunal has held in two cases that the Home Office should treat same-sex applications as analogous to marriage applications. 6. THE APPEAL If you have a right of appeal, the appeal itself will be heard by an Immigration Appellate Authority. You should request that you be given an oral hearing. At the hearing, the Home Office will be represented by a Presenting Officer and you can either argue your own case or be represented by a solicitor or barrister at you own expense (the Legal Aid scheme does not extend to paying for representation at the appeal, although it does extend to advice and assistance from a solicitor in order to prepare for an appeal). The adjudicator, who hears the appeal, is restricted by the Immigration Act as to what decision he or she can make. The Immigration Act only allows an adjudicator to overturn a Home Office decision if the decision failed to comply with the Immigration Rules or law, or in a limited number of cases, where the Secretary of State failed to exercise his discretion properly. ______________________________________ IMPLICATIONS The whole process is likely to take some time. If you are considering embarking on this road, you should talk to Group members who are going through it, before starting. The foreign national pursuing the route must be aware that whilst this is going on they will not be able to leave the UK for fear of not being allowed to re enter. It is unlikely that a favourable resolution will occur in less than two years. The good news is that from 28 days following the initial refusal the foreign national would not be prohibited from seeking employment in the UK, provided a National Insurance number is obtained. Understandably not everyone will be willing to embark upon such a course, given its inherent difficulties and the possibility of ultimate disappointment. However the only way lesbians and gay men are going to obtain equality is by persuading the Home Office to accept that same sex relationships are as valid as those between heterosexuals. 1 Letter to Birnberg & Co in the case of Livingstone 2 Letter to Dr Lynne Jones MP, 10 December 1993. 3 Livingstone [TH/43126/93 (10964)] and Lizarzaburu-Montani [TH/40655/93 (10848)].Article 8 of the European Convention on Human Rights Article 8 of European Convention on Human Rights ARTICLE 8 OF EUROPEAN CONVENTION ON HUMAN RIGHTS European law may present further opportunities through such arguments as the right to family life and the right to private life, although the potential for progressive change is uncertain. These arguments are covered under Article 8 of the European Convention on Human Rights (ECHR), which states that: Everyone has the right to respect for his family and private life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as 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 and morals, or for the protection of the rights or freedoms of others. However, in a decision by the Commission in the case of Yusoff and Lowther -v- UK1 , it was stated that: Despite the modern evolution of attitudes towards homosexuality, the Commission finds that the applicants relationship does not fall within the scope of the right to respect for family life ensured by Article 8. May 1983 Even in a 1989 case of a lesbian couple who had a baby 2 , the Commission refused to accept the existence of a family and thereby the protection of the immigration law concerned. In an earlier ruling, the Commission addressed the argument of respect for private life in an application brought by a New Zealand national wanting to remain in the UK to continue a stable relationship with his British partner3 . The Commission found that homosexual relationships do not fall within the ambit of family life but rather within the notion of private life; that the inevitable disruption of a persons private life by refusing to allow him to remain in the country cannot, in principle, be regarded as an interference with the right to respect for family life, unless the person concerned can demonstrate that there are exceptional circumstances justifying a departure from that principle. They also found that the absence in UK law of settlement rights for non- nationals in respect of their stable, private relationships, other than family relationships, does not disclose any appearances of a violation of Article 8; and that the applicants had not provided any substantion of their claim that it would be impossible to live together in New Zealand or elswhere.4 ________________________________________________________________________ __ ARTICLE 14 OF EUROPEAN CONVENTION ON HUMAN RIGHTS Article 14 states that: 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. Relevant case law here has not yet proved very useful. Indeed, in S vs UK 5 , the Commission found that: ...a difference in treatment in the enjoyment of the rights and freedoms set forth in the Convention is not to be regarded as discrimination for the purposes of Article 14 if that difference has objective and reasonable justification provided that the means employed are reasonably proportional to the aim sought to be realised. Here the Commission recognised that there was differential treatment and concluded that it was justified to protect families but not to give similar protection to other stable relationships and thus that the difference in treatment between the applicant and somebody in the same position whose partner had been of the opposite sex can be objectively and reasonably justified.6 (It is perhaps worth noting that the Commission, in this case, relied on an earlier ruling from 1981; the Commissions approach in 1994 may well be different.) However, AIRE (Action for Individuals Rights in Europe) believes that the interpretations of Articles 8 and 14 of the ECHR are not static. It singles out the progressive developments in the issues of both criminalisation and the age of consent as examples that the attitudes towards same-sex relationships are changing.7 In addition, AIRE specifically refers to the gradually widening definition of family life to include unmarried heterosexual couples,8 brothers, sisters and other relatives,9 parents, and children born outside marriage or after divorce.10 There is one indication that the attitude of the UK Government may be moving in a positive direction. In a letter to the International Lesbian and Gay Association, dated 18 September 1991, an official from the Foreign and Commonwealth Office wrote: The United Kingdom would look favourably on proposals dealing with the freedom of the individual to live in accordance with his or her sexual orientation. We see this freedom as flowing from the individuals right to respect for his private and family life as laid down for example in Article 8 of the European Convention on Human Rights. Since homosexual men and women are entitled to the same rights as any other person under international human rights instruments, we would also support, not necessarily just within the CSCE context, the right of lesbians and gays to live without any legal or social discrimination, in the same way as we would in the case of any other person. 11 The European Commission on Human Rights would not classify homosexual relationships as family life but held that same sex couples should have a right to respect for their private life. However they went on to rule that. ..that the deportation of one of a homosexual couple does not constitute an interference with the right to respect for private life unless it were established that the couple cannot live elsewhere and that the link with the deporting state is a material element of the relationship. The immigration rules in the home country of the foreign partner are therefore material. A greater chance of success is likely if it is impossible to live anywhere else. _____________________________________ THE EUROPEAN UNION The UK Immigration Minister has argued that, in refusing to accept same- sex partnerships in immigration, he is acting in accordance with a resolution signed by EU immigration ministers in June 1993. His argument is that, as there is no mention of homosexual relationships between a foreign national and a citizen of a member state, the UK is acting in concert with the majority of its European partners.12 However, the 1993 resolution was concerned with the family members of non-EU nationals who are lawfully resident in the territory of a member state. The cases presently affiliated to the Stonewall Immigration Group are concerned with the applications of foreign nationals who are same-sex partners of EU citizens, a category not covered by the resolution.13 The Netherlands, Denmark, Sweden and Spain all have policies that allow a foreign national to join their EU national partner. An EU national can, if resident in these countries apply for a residents permit for the partner. (See Going elsewhere). These policies, considered with the European Union Law on free movement of EU citizens and their spouses could affect cases in the UK. A case in the group concerns a British citizen who worked in the Netherlands for three years where his Australian partner was granted residency based on their relationship. Having acquired the right to be joined by his partner his EC rights to that advantage should not be lost when transferring back to the UK. In this case the arguments under Community Law centred around Article 7 and the sponsors right of free movement within the European Union. In Reed the ECJ recognised at para 28 that the possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him was within the scope of the Treaty and was thus a decision which could constitute a social advantage for the purpose of Article 7 of regulation 1612/68. When a British or EU national resident and working in the Netherlands seeks to transfer residence to the UK with regard to employment, in addition to any national rights he/she is entitled to, he/she is also exercising Treaty rights under Article 8a and 48. In Surinder Singh (1992) the ECJ held that a British citizen who had gone to work in Germany with her non-EC spouse was entitled to bring him into the UK on her return as she had been exercising Community rights in Germany and her spouse was entitled to the same rights in all EU states. Essentially it is contrary to Community Law to place an obstacle in the exercise of Community rights (Van der Elst v OMI 1994). The argument is that to prevent a person living with their partner, with whom they have been residing with legally in another part of the EU places an obstacle to their free movement. (see also preamble to regulation 1612/68): "Whereas the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom, dignity, requires that ..... obstacles to the mobility of workers shall be eliminated, in particular as regards the worker's right to be joined by his family..." In the Netherlands the cohabitation contract, and the residence permit granted to a couple suggests that in Dutch law the foreign partner is regarded as a member of the family (see decision of Dutch Supreme Court 19 Oct 1990, NJ 1992 No 129 on the meaning of "family life" ) There is also a question whether the failure by the UK Government to respect the residence permit granted by the Dutch Government to the foreign partner as member of the sponsors family is inconsistent with the principle of a single market without internal frontiers in which the free movement of persons is ensured pursuant to Article 7A E Treaty. Obviously many of the above arguments will apply to most of the other EU countries that recognise same-sex relationships. The Immigration Group has been in contact with other European lesbian and gay groups to try to establish a European Immigration Group. The EU are currently formulating a common immigration policy and it is vital that lesbian and gay relationships are not excluded. The immigration Group is planning a European lobby of MEPs cumulating with a conference, possible at the European Parliament, in December 1996. The arguments on free movement could be very persuasive and Governments of countries such as Denmark, Sweden and the Netherlands might be concerned if some of their nationals were being denied free movement without obstacles. Lesbian and gay immigration groups in these countries have been contacted and are also interested in a European wide campaign. ___________________________________________ Ahmed Ben Yusoff and Ian Lowther registered 13 May 1981 under file No 9369/81 ECHR 2 Application 14753/89 3 Application 12513/86 4 AIRE Report on Case Law, Feb. 1994 5 Application 11716/85 6 S vs UK [Application 11716/85] 7 AIRE, Report on Case Law, February 1994. 8 Applications 7289/75 and 7349/76. 9 Marckx (13 June 1979). 10 Marckx (13 June 1979). 11 CSCE Unit, Foreign and Commonwealth Office 12 Official Report, Hansard, 4 May 1994, c825. 13 Letter from McGrath & Co, solicitors, to Dr Lynne Jones MP, 17 May 1994. 14 Reed, European Court of Justice. DEPORTATION Deportation is the expulsion of a person who is, or has been, lawfully in the United Kingdom. A non-UK citizen is liable for deportation in three main sets of circumstances;  7A breach of conditions of stay, including overstaying.  Where a court recommends deportation after conviction for an offence punishable with imprisonment.  When the Home Secretary deems it to be conducive to the public good In making deportation decisions the Secretary of State must take into account every relevant factor known to him including strength of connection with the UK,... personal history including character,... domestic circumstances,... compassionate circumstances... (Rule 164 of the Immigration Rules HC251) The framing of Rule 164 suggests that discrimination against homosexuals should not occur at this stage. While this might be difficult to establish, the failure to take into account a long standing gay or lesbian relationship may be challenged. Although there is an appeal against deportation if the person has been in the UK for less than seven years the adjudicator can only rule on whether the decision was correct in law and therefore rarely allow the appeal. However it is possible for the adjudicator to make a recommendation in the applicants favour. In Webb 1 the Home Secretary planned to deport Mr Webb on the grounds of overstaying. At the appeal evidence was given to the effect that Mr Webb had formed a close relationship with Mr Bursey some six years previously, that the relationship was permanent and, had it been contracted with a woman, would have been in the nature of a marriage. Mr Webb was regarded by the Burseys as almost one of the family. The adjudicator decided to exercise his discretion in Mr Webbs favour. The Home Secretary appealed against the decision to the Tribunal 2 who refused to exercise their discretion differently from the adjudicator, allowing Mr Webb to remain. Unfortunately the full appeal applies, in the case of overstayers, only to people who have been in the UK for more than seven years. ____________________________________________ ILLEGAL ENTRANTS A person who has never been in the United Kingdom lawfully is an illegal entrant and therefore subject to removal. An illegal entrant includes those persons who entered without leave, those who entered on false or forged documentation and, most importantly, those who obtained their leave to enter by deception. This includes any one who entered with the intention of staying with their partner but did not tell the immigration officer on arrival, regardless of how genuine their entry was. The Immigration Service prefers to treat people as illegal entrants as removal can take place without the right of appeal. Therefore anyone asked for interview by the immigration service should seek legal advice before attending. Persons treated as illegal entrants however may be able to seek a Judicial review of the decision on the grounds that it is unreasonable to treat same-sex couples differently than heterosexual couples and that a long standing relationship is a compelling compassionate factor that should be considered. WHERE ELSE? Another option that some couples may wish to consider is the possibility of going to live in another country. Australia, Canada, Denmark, Finland, The Netherlands, Norway, South Africa, Spain, Sweden, and New Zealand have provisions in the law to allow a foreign national to remain in their country because of a long term same-sex relationship with an individual who is resident in that country. There is now the right of movement anywhere within the European Economic Area (which comprises both the European Union and EFTA, with the exceptions of Switzerland and Liechtenstein), so if you are a citizen of any of these countries, you can travel to and remain in any other member state. UK citizens can therefore move to Denmark, The Netherlands, Norway, Spain or Sweden with their foreign partner regardless of circumstances. ________________________________________ AUSTRALIA - INTERDEPENDENCY In April 1991 the Federal Government of Australia introduced new immigration regulations that allowed the overseas partners of gay and lesbian couples to be given permanent residency. The government recognised that there were a number of important relationships that fell outside the traditional family relationships. They therefore introduced a new category entitled: "Non familial relationships of emotional interdependency". To qualify;  7the relationship must have existed and been genuine and committed for at least six months  7the couple must be living together and closely interdependent  there must be a continuing commitment to mutual emotional and financial support  7the minister for Immigration must be satisfied that the relationship is genuine and will continue The Interdependency model does not exclusively cover homosexual relationships. It also enables unmarried heterosexuals who do not wish to marry to apply for permanent residency. CANADA - LANDED IMMIGRANT STATUS Canada recognises same-sex relationships in its immigration rules and has recently circulated a memo to its consulates worldwide instructing them that the lesbian and gay partners of Canadian citizens may be processed for landed immigrant status under discretionary humanitarian and compassionate criteria. _____________________________________ DENMARK - REGISTERED PARTNERSHIPS In Denmark there is full equality between same-sex couples and heterosexual couples, whether married in a registered partnership or just living together. ______________________________ NEW ZEALAND - HOMOSEXUAL PARTNERS The New Zealand government recognised that a small number of its citizens were being discriminated against and so in 1991 the immigration authorities issued instructions for assessing homosexual partners essentially the rules are similar to the Australian model except the relationship should be of 2 years duration. ____________________________________ THE NETHERLANDS - DEPENDENT RESIDENT Any person, regardless of sexuality, can obtain a dependant resident's permit if in a relationship with a Dutch citizen or person resident in Holland. SPAIN - PARTNERSHIP RIGHTS Spain has recently introduced partnership rights for same-sex couples and this should be reflected in the immigration laws. ____________________________________ SWEDEN - FAMILY CONNECTIONS A person who has a homosexual relationship with someone who is a Swedish resident is granted residency on the same terms as heterosexuals. REFUGEES The United Kingdom is party to the 1951 United Nations Convention relating to the Status of Refugees and the Immigration Rules reflect this. PARAGRAPH 140 OF THE IMMIGRATION RULES STATE: A person may apply for asylum in the United Kingdom on the ground that, if he were required to leave, he would have to go to a country to which he is unwilling to go owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In this sense it would appear that homosexuality would constitute membership of a particular social group. In Australia, Canada, Denmark, Finland, Germany, Ireland, The Netherlands, New Zealand, Sweden and the USA1 this is the case. However the English Courts have yet to recognise gay men and lesbians as a particular social group that may face persecution. Zia Mehmet Binbasi was a Cypriot who argued that as a homosexual he should not be returned to Cyprus where homosexual acts, even in private, were criminal. There was evidence of a small number of prosecutions, but there was no persecution of homosexuals themselves as opposed to prosecution for homosexual activity. In these circumstances the English Courts2 left open the question of whether homosexuals are a social group or not. Rather it held that the Home Secretary was entitled to hold that as it was not necessary for Mr Binbasi to engage in gay activity he did not face persecution and that an arrest for a homosexual offence would not amount to persecution. In the case of Golchin 3 the Immigration Appeal Tribunal held; The concept of a social group involved some historical element predetermining membership. It was not enough for association to arise merely by way of inclination. Nor could a social group be created merely by identifying the distinguishing characteristics of a set. Homosexuals were not, therefore, a social group for the purposes of the convention. Cases to the opposite effect from Germany and Holland merely indicated that those countries have a different approach to the parameters within which they are prepared to grant refugee status. However in the case of Vraciu the adjudicator stated; Unfortunately for Mr Vraciu homosexuality is not recognised in the current state of English Law as conferring membership of a social group within the meaning of the Convention. The case was referred to the Immigration Appeal Tribunal4 who considered whether homosexuals were a social group and whether prosecution for being homosexuals amounted to persecution. The Tribunal considered the definition of Social group by Mr Hathaway5 who states; Whatever the common characteristics that define the group it must be one that the members of the group either can not change, or should not be required to change because it is fundamental to their individual identities or conscience. The Tribunal disagreed with the findings in Golchin and concluded that: It may well be that since the Golchin decision in 1991 single sex relationships have become more accepted and more protected generally. It would seem to us to be unarguable that in the United Kingdom it has not been accepted that sexual orientation is recognised as identifying a person as within a group having a meaning in society. Homosexuals are treated differently according to the criminal law, there is a great discussion as to the advisability of homosexuals in the armed forces. There is no doubt that there is both an external and internal recognition of those who are sexually oriented in such a way as to form a group so identified by that characteristic.4 The Tribunal also considered the relationship between Prosecution and Persecution and stated: If therefore a particular social group was established it could be argued that prosecution of that social group because of membership of that group would be discrimination amounting to persecution.4 The Tribunal decision is an important decision that accepts the immutability of homosexuality. Although the decision is only the first step, the arguments are so compelling that it is only a matter of time before the UK is in line with a growing number of countries that recognise that people are persecuted for being gay. Mr Vraciu's case was referred back to the adjudicator in April 1995. The Home Office now claimed that they did believe Mr Vraciu was gay and called for an 'anal examination' to prove his homosexuality. In an outrageous determination the adjudicator agreed that he was not gay because gay people are "kind and sensitive" and Mr Vraciu did not fit his idea of a gay man! The case will now go back to the Tribunal. Shortly after the Tribunals determination in the case of Vraciu a differently constituted tribunal came to a different conclusion in the case of Jacques (11580). They held that homosexuals do not form a social group. There are therefore currently two conflicting Immigration Appeal Tribunal determinations. The case of Vraciu is going to the High Court where matters may be further resolved. COUNTRY FILE The Group is building up information on a country by country basis concerning a possible risk of persecution on the grounds of homosexuality. Any information that you have on a particular country that may be of assistance to a homosexual asylum seeker would be greatly appreciated. Readers should be aware of the existence of an organisation based in San Francisco that is able to provide information on persecution in particular countries due to sexual orientation. The organisation is called the: INTERNATIONAL GAY AND LESBIAN HUMAN RIGHTS COMMISSION (IGLHRC) 1360 Mission Street. Ste 200 San Francisco, CA94103, USA fax: (415) 255- 8662. On request they will provide you with a pack on the country you require information on. The cost of the pack varies depending on the number of documents included and there is a fee waive system for people on low incomes or solicitors handling the cases for free. 1 Matthew Davies (of Wilson & Co, solicitors), Lesbian and Gay Relationships and the Immigration Rules/ Practice, briefing for members of the Immigration Law Practitioners Association, 24 May 1994. 2 Reported at 1989 IMM AR 595 3 Case No. 7623, reported 1991 Immigration and Nationality Law and Practice Vol.5, No.3, page 97 4 Immigration Appeal Tribunal No HX/70517/94 (11559) Date heard 26 October 1994 5 The Law of Refugee Status Mr J.C. Hathaway 1991 OTHER OPTIONS Before making an application it is worth considering what other options might avail you. If it is possible to obtain leave to remain under another category legitimately then this should be the first option. The following options may be alternatives. EU NATIONALITY The creation of the European Economic Area means that all European Union and EFTA nationals (with the exception of the Swiss and Liechensteiner) can remain in the United Kingdom if they are exercising treaty rights by working and looking for work.1 ANCESTRY Commonwealth Citizens with grandparents born in the United Kingdom may be able to apply for UK residency. South Africa has now rejoined the Commonwealth and South Africans are therefore now eligible for permanent residency. An immigration adviser or solicitor will be able to advise. An option for non-Commonwealth foreign nationals might be to consider whether they can apply for nationality in one of the EU or EFTA countries. European countries with a history of migration or those with former colonies usually allow foreign nationals with parents or grandparents from their countries to apply for nationality. In particular the Republic of Ireland, Italy, Portugal and Spain have provisions in their immigration Rules for allowing foreign nationals with ancestry in their countries to apply for residency. WORKING HOLIDAYMAKER Commonwealth nationals up to the age of 27 can also apply for Working Holiday maker status in the UK. This entitles them to two years residency with the right to work. You will need to satisfy the Home Office that you have sufficient funds and that you intend leaving at the end of the two years. The Rules now insist that you leave the UK and apply for a working holiday visa in your home country. STUDENTS You can apply for an extension to remain as a student if your course is more than 15 hours of taught study a week and that all expenses are met. The Home Office usually grant extensions until the end of the course if satisfied that you will leave at the end of your studies. However the Home Office will refuse if they believe you are applying solely to remain in the UK. WORK PERMITS If you have a specialised skill and have potential employment you can get the employer to apply to the Department of Employment for a work permit. The employer would have to show that you have skills so specialised that it has been impossible to find a person with equivalent skills within the European Union. The Home Office would then grant a leave to enter or remain for the duration of the permit for employment purposes. INDEPENDENT MEANS There is a special provision in the Immigration Rules for persons of independent means. If you have at least #1million in capital or a guaranteed annual income of #25,000, derived from investments ( you would need at least #500,000 in capital for this!), you may be allowed to remain in the United Kingdom provided that you can show other ties with the country. Interestingly, for these purposes, a gay relationship has been found to constitute such a tie2 . You would also need to demonstrate that you will be able to support yourself exclusively from the income without taking work. LONG RESIDENCY The Home Office operates a long residency policy whereby those lawfully present for 10 years and those unlawfully here for 14 years will be granted indefinite leave in the absence of criminal convictions making such a course inappropriate. 2 Sum Yee Thong (TH/30896/87) & John Grimes Genge TH/25187/93 The World Health Organisation have stated that routine screening of travellers will not prevent the spread of AIDS. The United Kingdom, unlike some countries, has never made AIDS a ground for refusal and the Home Office generally considers AIDS as a compelling compassionate circumstance when considering applications for leave to remain. This policy is outlined in a letter from the Home Office Minister in 1988: The Government has decided that evidence of HIV infection or a diagnosis of AIDS do not alone constitute sufficient reasons for refusal of leave to enter on medical grounds. A passenger who may require medical treatment (including treatment for AIDS) in this country during their stay is required to satisfy the immigration officer that they have sufficient funds to pay for any charges which may be made for the treatment. 1 The major constraint indicated in this letter is that the immigration officers considering whether to admit an individual will be in a position to pay for medical treatment that may be required because of HIV related illness during the course of stay in the UK. However in most cases the immigration officer is extremely unlikely to determine that an individual is HIV positive. APPLICATIONS FOR EXCEPTIONAL LEAVE TO REMAIN ON COMPASSIONATE GROUNDS. Applications for leave to remain on the basis of such a relationship accordingly fall to be considered as a matter of discretion outside the Immigration Rules. Ministers have indicated that such applications are unlikely to be approved unless there are genuinely exceptional circumstances I would not hold out much hope that a person would be admitted solely on the basis of such a relationship unless the circumstances were wholly exceptional such as the grave illness of the British partner.2 The Home Office can, and often does, grant individuals leave to enter or remain on an exceptional basis where there are compelling compassionate circumstances. This approach has been taken with respect to people who themselves are in poor health because of an HIV related condition or who have a loved one in the UK who is ill and who would benefit from the continued presence, care and support of the applicant. An application made on the basis of HIV related illness should be accompanied by as much information as possible regarding the compassionate nature of the case. A doctors report setting out as fully as possible the individuals condition should be included, and this should provide a frank prognosis of the long term prospects of the applicant. The Home Office has shown increasing sophistication in dealing with such applications and may respond initially by asking further medical questions. Other compassionate factors should also be cited in the application such as the prospect of effective treatment in the home country, the individuals ties with the UK and the emotional support available to them from friends and relatives in the UK. If the application is being made to remain exceptionally in the UK to stay with and assist a partner affected by HIV-related illness, the same sorts of compassionate circumstances should be cited. The application should include as much detail about the nature of the relationship. If it is the case, an important factor to outline is how the applicants presence in the UK will represent a saving to Government expenditure on health care and social support services. It should be noted, however, in these cases the Home Office will often grant the carer exceptional leave to remain with a prohibition on taking employment. Although the Home Office has continually refused to recognise lesbian and gay relationships for the purposes of immigration practice, its record for dealing with these applications where one partner has an HIV related illness is considerably better. 1 Tim Renton MP Immigration Minister 17 June 1988 2 Letter to Wilson & Co, solicitors, 8 March 1993 IMMIGRATION LAW Immigration Law is complex. It is also an area of law in which many solicitors have no experience. There are a number of solicitors who specialise in Immigration Law. Most of these are members of the Immigration Law Practitioners Association (ILPA). The directory includes a number of law centres and organisations who are also members of ILPA. Law Centres and the voluntary sector have traditionally built up an expertise in Immigration Law. The Immigration Group has recently started an affiliation scheme for solicitors and law centres to ensure that the solicitors we recommend are not only gay friendly but have a detailed knowledge of same-sex immigration issues. All affiliated solicitors receive regular legal updates, information and advice, copies of important determinations and updates on our campaigns. ____________________________________________ COSTS Law Centres and voluntary organisations give free advice but this may be limited to people living in the local area or from a particular social group. Solicitors are able to provide free advice and assistance under the Green Form scheme to persons who qualify. The current position is that you do not qualify if you have over #1,000 in savings or if you earn more than #72 per week net of tax and National Insurance contributions. If you do not qualify for free advice your chosen solicitor may give you initial free advice. _____________________________________________ NATIONAL ORGANISATIONS Refugee Legal Centre Sussex House 39-45 Bermondsey Street London SE1 3XF Tel. 0171 378 6242 Contact: Simon Russel / Evan Ruth The AIRE Centre 74 Eurolink Business Centre 49 Effra Road London SW2 1BZ Contact: Jonathan Cooper/ Nuala Mole/Judith Carter [Advises on European Union and European Convention on Human Rights law] JCWI (Joint Council for the Welfare of Immigrants) 115 Old Square London EC1V 9JR Tel. (071) 251-8706 Contact: Lanis Levy Immunity Legal Centre First Floor 32-38 Osnaburgh Street London NW1 3ND Tel. (071) 388-6776 Contact: Helen Tyrell/Jeremy Gibb [Works with people who are HIV positive] The Terrence Higgins Trust. 52 Grays Inn Road London WC1X 8JU Tel: 0171 831 0330 Contact: Simmi Vinikka Immigration Advisaory Service 2nd Floor, County House 190 Great Dover Street London SE1 4YB Tel: 0171 357 6917 Contact: Sian Clarke AFFILIATED SOLICITORS (LONDON) Baily Shaw & Gillet 17 Queen Square London, WC1N 3RH Tel. 0171 837 5455 Contact: Elspeth Guild Bartram & Co 1st Floor, 302 Bath Road Hounslow West Middx. TW4 7DN Tel. 0181 814 1414 Contact: Peter Bartram Bindman & Partners 1 Euston Road London, NW1 2SA Tel. (0171) 278-8131 Contact: Alison Stanley B M Birnberg & Co 103 Borough High Street London, SE11 1NN Tel. (0171) 403-3166 Contact: Fiona Lindsey, Susan Upton Jane Coker & Co Emma House 214 High Road, Tottenham London, N15 4NP Tel. (0181) 885-1415 Contact: Jane Coker Maurice Cohen & Co 309 Kentish Town Rd London, NW5 2TJ Tel. 0171 267 2967 Contact: Malcolm Bryant Edwards Son & Noice 100-102 High Street North London E6 2HV Tel. (0181) 471-5231 Contact: R Sethi Fisher Meredith Solicitors 2 Binfield Road London, SW4 6TA Tel. 0171 622 4468 Contact: Rosemary Brennan Gill & Co solicitors 22A Theobalds Road London, WC1X 8PF Tel. 0171 242 0404 Contact: Mr A Gill Glazer Delmar 223-229 Rye Lane, Peckham London, SE15 4TZ Tel. (0171) 639-8801 Contact: Hugh Southeby Wesley Gryk 149 The Strand London, WC2R 1JA Tel. 0171 240 8485 Contact: Wesley Gryk Deighton Guedalla 127 City Road London, EC1V 1JB Tel. (0171) 490-5518 Contact: Vicky Guedalla Date: Tue, 6 Feb 1996 17:54:01 +0000 From: Mark Watson Subject: Stonewall Immigration Group [2/2] Gulberkian Harris Andonian 181 Kensington High Street London, W8 6SH Tel. (071) 937-1542 Contact: P Wyatt, Bernard Andonian. Diane Gelon 8 Coldbath Square London, EC1R 5HL Tel. 0171 833 3121 Contact: Diane Gelon Magrath & Co 52-54 Maddox Street London, W1R 9PA Tel. 0171 493 3003 Contact: Lesley Kemp Moss Beachley & Mullem 37 Crawford Street London, W1H 1HA Tel. 0171 402 1401 Contact: Helen Wildsmith Samy, Thomas & Co 245 High Road London, NW10 2RY Tel. (0181) 451-4292 Contact: Mr Samy Sarah Wijesinghe & Co Suite B22, Glen House 200-208 Tottenham Crt Rd London, W1P 9LA Tel. (0171) 323-4770 Contact: Sarath Wijesinghe Seddons 5 Portman Square London, W1H 9PS Tel. (0171) 486-9681 Contact: Richard Burbury Stuart Miller & Co 247 High Road London W22 0181 888 5225 Contact: Sally Thompson Sutovic & Hartigan 11 High Street London, W3 6NG Tel. 0181 993 5544 Contact: Susan Sutovic Taylor Nichol 3a Station Place London, N4 2BH Tel. 0171 272 8336 Contact: C Taylor / E. Afele James Tsang & Co 13a Macclesfield Street London, W1V 7LJ Tel. (071) 287-0451 David Turner 9 Cork Street, Mayfair London, W1X 1PD Tel. 0171 437 3806 (Only US immigration matters) Wilson & Co 697 High Road Tottenham London, N17 8AD Tel. (0181) 808-7535 Contact: Matthew Davies Winstanley Burgess 378 City Road London, EC1V 2QA Tel. (0171) 278-7911 Contact: David Burgess AFFILIATED SOLICITORS (NATIONAL) McGrath & Co King Edward House 135a New Street Birmingham B2 4QJ Tel. (021) 643-4121 Contact: Philip Turpin James & Co 19 Oak Lane Bradford, BD9 4PU Tel. 01274 774000 Contact:Charles James Latchams, Montague Niblett & Co 63-67 Stokes Croft Bristol BS1 3QT Tel. 0117 9245 023 Contact: Mary Shepherd Gray & Co solicitors 13 Royal Terrace Glasgow G3 7NY Tel. 0141 332 8877 Contact: Charles McGinley Harrison Brindley Solicitors 219-221 Chapletown Road Leeds, LS7 3DX Tel. 01132 374047 Contact: Ruth Brindley Edward Frais Abrahmson 8 Myrtle Parade Liverpool, L7 7EL Tel. 0151 707 1212 Contact: Peter Simm Sri Kanth & Co 1st Floor, 604 High Road Wembley Middx. HA0 2AF Tel. 0181 795 0648 Contact: Mr Sri Kanth David Gray & Co 56 Westgate & Co Newcastle upon Tyne NE1 5XU Tel. 091 232 9547 Contact: Katherine Henderson Leathes Prior Sols. 74 The Close Norwich Norfolk, NR1 4DR Tel. 0603 610911 Contact: Tim Cary Nelsons solicitors Pennine House 8 Stanford Street Nottingham, NG1 7BQ Tel. 0115 958 6262 Contact: David Smith Warren & Allen 24 Low Pavement Nottingham, NG1 7ED Tel. 0115 950 7121 Contact: Miss Ranjit Dhindsa Hegarty & Co 48 Broadway Peterborough Tel. 01733 346333 Contact: Phillip Lee-Ashby Darbys solicitors 50 New Inn Hall Street Oxford. OX1 2DN Tel. 0865 728560 Contact: Jennifer Harvey _____________________________ AFFILIATED LAW CENTRES Belfast Law Centre 7 University Road Belfast, BT7 1NA Tel. 01232 321307 Contact: Anne Grimes Bellenden Neighbourhood Advice Centre Copleston Centre Copleston Road London SE15 4AN Tel. (0171) 639-8447 Brixton Community Law Centre 506-8 Brixton Road London, SW9 8EN Tel. 0171 737 0440 Contact; Mr Okunola Camden Community Law Centre 2 Prince of Wales Road London NW5 3LG Tel. 0171 485 6672 Cardiff Law Centre 15 Splott Road Cardiff CF2 2BU Tel. 01222 498117 Contact: Johnathan Hyams Greenwich Community Law Centre 187 Trafalgar Road London SE10 9EQ Tel. (0181) 853-2550 Contact: David Taylor Hammersmith & Fulham Law Centre 142 - 144A King Street London, W6 0AQU Tel. 0181 741 4021 Contact: Pauline Gooderson Hackney law Centre 236 - 238 Mare Street London, E8 1HE Tel. 0181 985 5236 Contact: Pierre Makhlouf Hillingdon Legal Centre 12 Harold Hayes, Middlesex Tel. 0181 561 9400 Contact: N Balins Highfields & Belourave Community Law Centre 6 Seymour Street Leicester, LE2 0LB Tel. 0116 2532928 Contact: Micheal Coxan Humberside Law Centre 95 Alfred Gelder Street Hull HU1 1EP Tel. (0482) 211180 Contact: John Halford Hyson Green Law Cnt 119 Radford Road Hyson Green Nottingham, N67 5DU Tel. 01602 787813 Contact: Jenny Fitzgerald Manchester Immigration Aid Unit 400 Cheetham Hill Road Manchester M8 9LE Tel. 0161 740 7722 Contact: Tony Openshaw Newcastle Law Centre 279 Westgate Road Newcastle-upon-Tyne NE4 6AJ Tel. (0191) 230-4777 Contact: M Foster North Islington Law Centre 161 Hornsey Road London N7 6DD Tel. (0171) 607-2461 Contact: Judith Carter North Lambeth Law Centre 14 Bowden Street London SE11 4DS Tel. 0171 582 4425 Contact: Mary Massihi North Lewisham Law Centre 28 Deptford High Street London SE8 3NU Tel. (0181) 692-5355 Contact: Amir Hamzav North Manchester Law Centre Paget Street Manchester M10 7UX Tel. (061) 205-9031 Contact: Keith Ashcroft NUCLEUS legal advice 298 Old Brompton Road London, SW5 9JF Tel. 0171 373 4005 Contact: Neil Froom Oldham CAB 24 Clegg Street Oldham, OL1 1PL Tel. 0761 628 7288 Contact: Beate Dasarathy Rochdale Law Centre Smith Street, Rochdale, OL16 1HE Tel. 0706 57766 Contact: Audrey MacDonald Salford Law Centre 498 Liverpool Street Salford M6 5QZ Tel. (0161) 736-3116 Contact: Sajida Ismail Sheffield Law Centre Waverley House 10 Joiner Street Sheffield S3 8GW Tel. (07142) 731888 Contact: Gazalah Shain South Manchester Law Cnt. 584 Stockport Road Manchester M13 0RQ Tel. (0161) 225-5111 Contact: S Singh Walthamstow CAB 167 Hoe Street London E17 3AL Tel. 0181 520 2649 Contact: Hilary Plews ___________________________ AFFILIATED BARRISTERS Barristers can be instructed through a solicitor to provide written advice on complex areas of law or to represent you at an appeal hearing. They have to contacted through a solicitor. Nadine Finch 1 Pump Court Temple London, EC4 Tel. 0171 583 2012 Sophie Henderson 3 Paper Building Temple London, EC4Y 7EU Tel. 0171 353 6208 Stephanie Harrison 6 Kings Bench Walk Temple London EC4 Tel. 0171 353 4931 Bernard Richmond Ground Flr, Lamb Building, Temple, London EC4Y 7EU Tel. 0171 797 7788 Compelling Circumstances Arguments for equality in UK immigration law Produced by The Stonewall Lobby Group Ltd. April 1995 Written by Matthew Davies Mark Watson Copies available from Stonewall free of charge, however contributions toward the cost of printing and postage will be gratefully received. Please contact us at Stonewall 2 Greycoat Place Westminster London SW1P 1SB Telephone 0171 222 9007 Facsimile 0171 222 0525 Printed by Anderson Fraser 0171 278 9703 introduction Three years ago two young men contacted us about their immigration appeal. Brian was an American working in theUK. He had been livingwith his partner of almost three years, David, a British citizen. Because his work permit was due to expire he was about to leave the country. He had been told that his relationship with David gave him no right to stay here. Within a month two other couples had been in touch with similar stories and we began to realise that this problem was increasingly common. What was uncommon about Brian and David was their refusal to accept the situation and their willingness to speak out, to take their case to MPs and peers in Parliament. Their confidence and determination encouraged us to try and bring together couples with immigration problems and thus the Stonewall Immigration Group was born. Thanks, in particular, to the untiring efforts of Mark Watson, the Group now has 500 members and is constantly pushing forward the legal and political arguments for change. I hope this pamphlet will bring together that work and help make sure that the case for change is clearly understood among all sections of society. What we want is, in fact, very simple. It does not require a change in the law, but it is inspired by an appeal to universal values which should underpin any democratic society, the right to equal citizenship, the right to individual respect and toleration, the right of everyone to choose their own partner . It is a message that is being understood and respected across the world. The pamphlet sets out how different countries have integrated lesbians and gay men within their own traditions and legal frameworks, but in each country the principle is the same. I hope that you will read it and be convinced by the arguments and moved by the personal testimony and above all that you will add your voice to those in the Immigration Group who with dignity and courage are claiming the right to live their lives freely and equally. The numbers involved may be small but it is an issue for us all. compelling circumstances Under the immigration laws a British lesbian or gay man in a relationship with a foreign partner has no right to live in the United Kingdom with the person of their choice. Our government has forcibly deported lesbians and gay men -- their only crime, being in love with a British Citizen or resident. Under current Immigration Rules a foreigner may be allowed to stay in the United Kingdom if married to a British national or permanent resident. In practice this has been extended to permit so called common-law spouses, and indeed even mistresses, to stay in the United Kingdom if their partner is British or a permanent resident. Yet permanent, stable and loving homosexual relationships are excluded. Calls to allow people in such relationships to stay have been rejected by this government. We have no plans to amend immigration policy on homosexual or lesbian partners seeking to enter or remain here Charles Wardle, Minister for Immigration, May 1994. The government claims that they will always consider allowing a person to stay in the UK if there are compelling circumstances. However a loving, caring and emotionally interdependent relationship is not, as far as this government is concerned, such a compelling circumstance. facts of life Every year thousands of Britons go abroad on business or on holiday. Equally many foreigners visit the United Kingdom for the same reasons. As people interact with one another friendships and relationships develop. Whichever country, whichever nationality, whichever sexuality, people meet and fall in love. Not many British people fall in love with someone from another country. A very small proportion of those who do will be lesbians or gay men. The numbers of people affected are very small but the effect on their lives can be devastating. My whole life revolves around Tariq. Deporting Tariq would not only be a blow to him, having invested so much of his life in this relationship, but it would be devastating to me, and I dont think I could cope on my own without him Richard, a British Citizen, whose partner of 10 years is to be deported. Most people are not aware that there is a problem until it happens to them, their friends or a member of their family. The foreign partner is commonly a person who came to the United Kingdom as a visitor or student and who then fell in love with a British citizen or resident. They are often well qualified with talent and skills to offer the British economy, and usually solvent, either working or adequately supported by the British partner. Their partner is a British citizen or a person settled here permanently; a tax payer entitled, they thought, to the same rights as other tax payers. The couple may have chosen to make their home in the United Kingdom because the British partner has a good job and prospects here or because the foreign partners country does not tolerate or even permit lesbian or gay relationships. Heterosexuals can affirm their love through a marriage ceremony and apply to the Home Office for the foreign partner to stay. As long as the Home Office is satisfied that the marriage is genuine, that it was not entered into primarily to stay in the UK and that the couple can support each other, the foreign partner should be allowed to stay. Whilst the conditions imposed on heterosexuals are onerous, particularly the primary purpose rule, at least their relationships are recognised. The government also recognises heterosexual common-law relationships, although they have no legal status, and has a policy of allowing a person to stay in the UK if there are compelling circumstances. In these cases the government accepts the significance and importance of a loving relationship. Why wont they show the same humanity to people in homosexual relationships? firm but fair? The Home Secretary, in the debate on the 1971 Immigration Act, described the purpose of immigration control as a means of contributing to peace and harmony. Parliament was assured that there was no question of the government administering the new legislation on a racially or otherwise discriminatory basis. In the many hours of Parliamentary debate that preceded the passing of the immigration laws of this country it was never once proposed that immigration laws should be introduced to prevent lesbians or gay men from remaining in the United Kingdom with their British partners. The fact that lesbian and gay relationships are omitted from the immigration rules does not mean that Parliament has ever mandated a Home Secretary to exclude lesbian and gays. The Home Secretary is given power to make the Immigration Rules. He has chosen to discriminate against lesbians and gays by excluding same-sex relationships whilst making provision for similar heterosexual relationships. Ander and our son Mark are a loving and genuine couple. We would appeal to you to let them both live a normal, quiet life, like most heterosexuals do. Mark Watsons parents writing to the Home Secretary in support of Ander, his partner of 4 years. The government maintains that the philosophy behind the immigration policy is that the law should be firm but fair. Laws that discriminate and infringe the basic human right to live with the partner of your choice can never be described as fair and the existence of such inequity undermines the respect in which our laws should be held. The devastation, emptiness and grief that separation would leave me with is by far the cruelest act of injustice to two people who because of their strong emotional, physical and spiritual commitment to each other, wish to remain together. - Peter, who has been refused permission to stay with his British partner of 3 years, Chris. The government will not admit that it is a matter of discrimination nor will they recognise that this is an issue of fundamental human rights. justifying discrimination To justify the current discrimination the Home Secretary relies on the following arguments: 1. English law accords no status to homosexual relationships - our immigration practice simply reflects the general position. Immigration practice should reflect the general position in society and not tie its hands by reference to lack of status under English law. English law does not prohibit lesbian and gay relationships and within English law they are increasingly recognised. In a leading case in 1993 the House of Lords said: Now that unmarried cohabitation, whether heterosexual or homosexual is widespread in our society, the law should recognise this. Barclays Bank vs OBrian, 21 October 1993 The law commission have also recognised homosexual relationships for the purposes of legislation dealing with domestic violence and inheritance. 2. English law does not permit homosexuals to marry. The Immigration Rules only recognise married heterosexual relationships. Homosexual couples are treated just the same as unmarried heterosexual couples. In immigration practice marriage, in itself, is not the determining factor; it is the substance of the relationship and the intentions of the parties that is of importance to the Home Office. If a relationship is a fraud the Home Office will refuse an application despite the existence of the marriage certificate. The Home Office has a well-known policy that unmarried heterosexual couples be treated as if they were married . The Minister confirmed that over four hundred such applications were allowed in 1993. Similar applications from same-sex couples were all refused (except those where the British partner was about to die). To say that homosexual couples are treated the same as non married heterosexual couples is simply not true. 3. The majority of our European Union partners are not prepared to contemplate the admission of homosexual partners and any movement away from our current policy would put us out of step with them. Denmark, Finland, The Netherlands, Norway, Spain and Sweden all admit homosexual partners; as do countries of the Commonwealth such as Australia, Canada, New Zealand, and South Africa. Why does the government not wish to be out of step with their European partners on this issue but are prepared to be out of step over the age of consent? An equal age of consent now exists in 22 out of 28 Council of Europe countries. options for change There are a number of options that the government should consider which if implemented would end the current infringement of the basic human right to live in your own country with the person you love. The options we list below are all tried and tested and work for the countries concerned. They are accepted by the electorates of those countries involved and have brought a great deal of happiness and peace of mind to the people who benefit and no adverse consequences have been reported. We invite the Government to consider the options for change. The Australian Model Interdependency In April 1991 the Federal Government of Australia introduced new immigration regulations by which they recognised that there were a number of important relationships that fell outside the traditional family relationships. They therefore introduced a new immigration category entitled Non familial relationships of emotional interdependency. In order to qualify: - the relationship must have existed and been genuine and committed for six months - the couple must be living together and closely interdependent - there must be a commitment to mutual emotional and financial support - the Minister for Immigration must be satisfied that the relationship is genuine and will continue. The Interdependency model does not exclusively cover homosexual relationships. It also enables unmarried heterosexuals who do not wish to marry to apply for permanent residency in Australia. The New Zealand Model Homosexual partners The New Zealand government recognised that a small number of its citizens were being discriminated against and so in 1991 the immigration authorities issued instructions for assessing homosexual partners. To qualify: - the application must be supported by the New Zealand partner - the couple must have been living together in a genuine and stable relationship for 4 years or more. The 4 year qualifying period is about to be halved to 2 years, the same as for heterosexual common law relationships. The Danish Model Registered partnerships In Denmark there is full equality between same-sex couples and heterosexual couples, whether married, having a registered partnership or just living together. The Danish laws enable same-sex couples to marry by registering their partnership. If the requirements for registration are met then the couple will be treated for the purpose of immigration law in the same way as married heterosexuals. Even where the partnership is not registered the foreign partner can apply for residency if the relationship has lasted 18 months and the couple have lived together for that time. The Dutch Model Dependent residents permit Any person, regardless of sexuality, can obtain a dependent residents permit if in a relationship with a Dutch citizen or person resident in Holland. To qualify: - the couple must live together; - the relationship must have lasted six months or more; - appropriate housing and financial support must be available. Sweden Family connections A person who has a homosexual relationship with someone who is a Swedish resident is granted residency on the same terms as heterosexuals. It is deemed to be an appropriate family connection. Canada Humanitarian and Compassionate grounds In Canada the existence of a stable homosexual relationship with a Canadian citizen is a considered a humanitarian and compassionate ground for allowing a person to stay. They recognise that the relationship is a compelling circumstance. conclusion We believe the case for change is overwhelming. There is no rational justification for the current discriminatory practice. Attitudes are changing as more and more indiviudual lesbians and gays stand up for their rights and come out. The following remarks by Lord Scarman shows that our case to be treated fairly and equally is not only convincing but well supported. I am well aware of the fact that Mr Rupert wishes to reside in this country so that he may continue the close relationship with you which already exists. There is nothing unlawful or in any way disreputable in this relationship. Both of you are young men in good standing and have the support of both your families. There are no financial problems. The only objection that I have heard as possibly affecting a decision in favour of the application is that the relationship is a gay one. I cannot believe that this is any reason why the application should be refused. A homosexual relationship between two consenting adults is in itself perfectly lawful. I know of nothing scandalous, disreputable, or criminal in the conduct of either Mr Rupert or yourself. Indeed I would think that these young men have much to contribute to this country if this application be granted. - Lord Scarman, 8 December 1992. Writing in support of an American to stay with his British partner of 3 years. The application was refused. The precise wording of any policy or rule, and the conditions on which the person is allowed to remain, is for the Home Secretary to decide. The government claims to operate a firm but fair immigration policy. Such a policy should not be undermined by inconsistency and discrimination. Immigration law and practice should allow all British citizens, regardless of their sexuality to live in their own country with the partner of their choice. Perhaps we can conclude with the words of two men who have both been involved with formulating this governments current immigration law. Since homosexual men and women are entitled to the same rights as any other person under international human rights instruments we would support the right of lesbians and gays to live without any legal or social discrimination in the same way as we would in the case of any other person. From a letter written on behalf of the Right Honourable Douglas Hurd (Foreign Secretary) from the Foreign and Commonwealth office. The Rt. Hon. Michael Howard, current Home Secretary with responsibility for immigration policy, stated in Parliament during the age of consent debate that: These people [homosexuals] should be free to pursue their lives in private without discrimination of any kind. We invite the Ministers and their government to put these words into practice. what you can do We do not require a change in the law; we do not require a vote in Parliament; we only ask the Immigration Minister to show some compassion and recognise that our relationships are just as valid as those of heterosexuals. When we are forced to separate our pain is just as great. Our families and friends are hurt just as much. The Minister justifies his position by stating that our relationships are not comparable to heterosexuals. What he is saying is that our love and our lives are second rate! Inequality is the concern of us all, whether gay or straight. Although the numbers affected by this inequality are small the results are devastating. We therefore urge you to write to your MP and ask her/him to support equality in immigration practice, pointing out that it can not be right to destroy peoples relationships and lives. We want to be able to show the Immigration Minister that his policy is not only unfair but also unjustifiable. Write to your MP urging her/him to help end this most cruel discrimination. Please help us!! All we want is to be together! I am a mess! Im not sleeping, not eating properly, I cant stop crying! My whole world is falling down around my ears. If I were a man none of this would have happened. I would be allowed to stay legally with Sarah. But Im not and I cant. Its so unfair. Rachel, a British Citizen, writing in support of her partner who was refused permission to join her. what you can do We do not require a change in the law; we do not require a vote in Parliament; we only ask the Immigration Minister to show some compassion and recognise that our relationships are just as valid as those of heterosexuals. When we are forced to separate our pain is just as great. Our families and friends are hurt just as much. The Minister justifies his position by stating that our relationships are not comparable to heterosexuals. What he is saying is that our love and our lives are second rate! Inequality is the concern of us all, whether gay or straight. Although the numbers affected by this inequality are small the results are devastating. We therefore urge you to write to your MP and ask her/him to support equality in immigration practice, pointing out that it can not be right to destroy peoples relationships and lives. We want to be able to show the Immigration Minister that his policy is not only unfair but also unjustifiable. Write to your MP urging her/him to help end this most cruel discrimination. Please help us!! All we want is to be together! I am a mess! Im not sleeping, not eating properly, I cant stop crying! My whole world is falling down around my ears. If I were a man none of this would have happened. I would be allowed to stay legally with Sarah. But Im not and I cant. Its so unfair. Rachel, a British Citizen, writing in support of her partner who was refused permission to join her. Stonewall lobbying tips Lobbying tips is a beginners guide to lobbying your MP on lesbian and gay issues. MPs place great emphasis on public opinion in their constituency. They read and respond to editorials in the local paper, and they respond to most letters and calls they receive. Even more importantly, MPs make time available to meet their constituents. How MPs judge opinion in their constituency helps direct their voting behaviour. They want to know who supports an issue, how many support the issue, why they support it and how it will affect their area. If youve never communicated with your MP on gay and lesbian issues, now is the time. People who lobby their MPs make an important contribution to the struggle for full equality. One thing MPs do - and do well - is to count. They count votes, contributions to their campaign, phone calls and office visits. Every contact you make is an important one. Its one more voice for lesbian and gay equality. Make your voice count! Who is your MP? Call Stonewall and we can tell you who your MP is. Students have two MPs - your MP for your address in term time, and your MP for your home address during the holidays. You can take advantage of this to lobby two MPs on lesbian and gay issues. Tips for writing to your MP You can write to your MP at the House of Commons, London SW1A 0AA. It is important to stay in written contact with your MP. MPs use letters as one way to measure public opinion in their constituency. MPs count the letters they get for and against every issue. Arranging the visit Members of Parliament have offices both in London and in their constituencies. You can arrange a visit at either location. MPs are usually in their constituencies at weekends and during recess. You can write or call to ask for an appointment. If you call, ask to speak to the secretary. Keep your request for time brief - 15 minutes is a long time to discuss your views on a vote or issue. Your respect for their time will be appreciated and remembered the next time you want access to that office. During the visit Be direct and concise in your presentation. Know what you want your MP to do (sponsor a bill, vote for or against, write a letter to a minister, etc.) and be able to present your views clearly. Its the quality, not the length, of discussion that will be important. If youre going to see an MP who has a bad record on lesbian and gay issues, you might be tempted to tell them off. Dont! If they say things that offend you, keep a cool head and respond rationally, with facts. In some offices all you may achieve the first time is a civil exchange of conflicting opinions, but if you handle yourself well you can begin to establish a working relationship. After the visit Be sure to summarise your discussion in a letter as a follow up. You may also want to send a copy of your letter or other correspondence you receive from your MP to us. Stonewall keeps files on MPs attitudes and your feedback is important for our future lobbying work. Identify yourself Make sure your MP knows you are a constituent. You can identify yourself as a constituent but you can also assume the MPs staff will recognise most addresses in the constituency- which means you must include your name and address. Dont send anonymous letters. Selling your position Be brief and concise. Type or write clearly so your letter will be easy to read. State your position and exactly what you want your MP to do in the first paragraph. For example, I urge you to write to the Immigration Minister asking him to reconsider his unjust policy. Avoid deeply emotional appeals, demands, threats or promises. These are not effective tactics. But if you are writing about discrimination and you have personal experience, explain that in your letter. Your experiences could help. Follow up your contact Request a reply. You can ask how your MP will vote on a particular issue. You are more likely to receive a reply if you ask for one. If your MP replies saying they agree with your position, or they intend to write to the Minister - write back and thank them. If your MP replies informing you that they do not agree with equality - write back and explain your position again. Dont let them off the hook. If you dont receive a reply, write again, enclosing your original letter. If you receive a noncommittal reply, write again, asking them where they stand. Keep up the pressure! About Stonewall Stonewall is our national lesbian and gay lobbying organisation working for legal equality and social justice. Established in 1989, Stonewall has grown into a respected and effective organisation that voices lesbian and gay concerns to a range of influential social groups, including parliament and the media. We campaign and lobby on a wide variety of issues. We ensure the media has a lesbian & gay perspective on issues that affect all our lives. We research the issues to ensure the facts are clear and the case for lesbian & gay civil rights is presented rationally and convincingly. The Immigration Group The Stonewall Immigration Group is a mutual support and campaign group for lesbian and gay couples with immigration problems that they would not face if they were heterosexual. The Group has over 250 couples who face separation or who have been separated by this countrys unjust immigration rules. The aim of the Group is to work for a change in the immigration rules and practice to ensure that same-sex couples have the same immigration rights as heterosexuals. The Group also exists for the exchange of information, to provide a network for mutual support and to advise and support any applications to the Home Office that couples may make. Stonewall Press Release: 5 February 1996 Immediate Release Homosexuals could be "Social Group" concedes Home Office Minister Ann Widdecombe states that asylum claims based on a persons sexuality might now be granted as homosexuals could be a social group for UN Convention purposes David Alton MP was asked by Stonewall to raise the issue of homosexuals as a social group for asylum purposes with the Immigration Minister who replied on 31 January 1996 saying that homosexuals may form a social group for convention purposes. In her letter she explains: "Sexual orientation is taken into account in the assessment of individual asylum claims where this is relevant. ... Each individual claim is considered on its merits to determine whether the applicant can demonstrate in all the circumstances of the case, that he or she has a well founded fear of persecution in a particular country for any of the Convention reasons. We interpret this provision in the convention as follows: i) the group is defined by some innate or unchangeable characteristic of its members analogous to race, religion, nationality or political opinion for example their sex, linguistic background , tribe, family or class which the individual cannot change or should not be required to change; and ii) there must be a real risk of persecution by reason of the person's membership of the group. Whilst claims based on homosexuality might satisfy i) with this definition, the requirement's set out in ii) would also have to be met in the individual case." Mark Watson of the Stonewall Immigration Group stated "The position of homosexuals claiming asylum based on their sexuality has not been resolved by the Immigration Appeals Tribunal as we currently have two conflicting interpretations of Social Group. Ann Widdecombe's letter is very welcome as she clearly believes that homosexuals could be defined as a social group. I believe we have made tremendous progress in getting this principle established. However we are very concerned that the Government has produced a "white list " of countries that they believe generate no asylum seekers. This list includes Romania, where Amnesty report the imprisonment and torture of gay men, and Pakistan where gay men face imprisonment and flogging. Obviously the Home Office has taken no account of the terrible persecution lesbians and gay men face because of their sexuality when producing this list." ENDS For further information and a copy of the letter please call Mark Watson on 0171 336 8860 Notes: Under the United Nations Convention asylum seekers can only be granted asylum if they face a well founded fear of persecution because of their race, religion, political opinion or membership of a particuler social group. Until recently the Home Office refused to grant asylum to homosexuals (despite believing that they had been persecuted because of their sexuality) because homosexuals did not form a social group. In 1994 the Immigration Appeals Tribunal ruled that they did form such a group and therfore could claim asylum in the ground breaking case of Vraciu, a gay Romanian soldier. However a subsequent Tribunal ruled that homosexuals were not a social group in the case of Jacques. Mark Watson Stonewall 16 Clerkenwell Close London EC1R 0AA Tel. 0171 336 8860 Fax. 0171 336 8864 http://www.tyger.co.uk/sig/