LD v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 10 September 2006 |
| Neutral Citation | [2006] UKIAT 75 |
| Court | Immigration Appeals Tribunal |
| Date | 10 September 2006 |
[2006] UKIAT 75
Asylum And Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Chalkley
Senior Immigration Judge Grubb
Senior Immigration Judge Spencer
For the Appellant: Ms L Dubinsky, Counsel instructed Wilson & Co, Solicitors
For the Respondent: Ms S Vidyadharan, Home Office Presenting Officer
LD (Article 14; same-sex relationships) Brazil
Prior to the coming into force of the Civil Partnership Act 2004, it was not a breach of art 14 of the ECHR amounting to unlawful discrimination on the ground ofsexual orientation to refuse to grant leave to a person in a same-sex relationshipwho could not satisfy the requirements of the Immigration Rules in circumstances where a party to a marriage would be granted leave under the Rules. The differential treatment was, at that time, objectively justified. (N.B. Because of the provisions of the Civil Partnership Act 2004 this is an example of the rare case where leave to remain is an essential requirement for the development of family life under art 8.)
This is a reconsideration on the application of the Secretary of State of a decision of Immigration Judge Martineau promulgated on 2 June 2005 who allowed the appellant's appeal against a decision of the Secretary of State taken on 4 April 2005 refusing the appellant's application to extend his leave to remain in the United Kingdom outside the Immigration Rules.
The appeal raises a difficult legal issue concerning the application of the prohibition against discrimination found in art 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the ECHR”) where leave to remain is refused to a person in a same-sex relationship prior to the coming into force of the Civil Partnership Act 2004.
The facts are not in dispute and can be stated briefly. The appellant is a citizen of Brazil who was born on 24 August 1979 and so is 25 years old. He came to the United Kingdom as a visitor on 21 June 1999. Thereafter, he was granted leave to remain as a student on a number of occasions to study English until 31 st December 2002. The appellant is gay and during this time he formed a relationship with a male German citizen working in the UK. They lived together and on 3 March 2003, the appellant was granted further leave to remain for 2 years as his unmarried partner. However, after a year or so the relationship broke down and they separated. The appellant moved into a house in London with friends. Whilst there, he formed a friendship with a male British citizen whom he had briefly met in Brazil in 2002. Over time their relationship developed and they became close. In the summer of 2004, the appellant's partner moved to Brighton and this only served to crystallise for them the strength of their relationship. In January 2005 they began living together as a couple in Brighton.
On 2 March 2005 — the day before his leave ran out — the appellant applied for further leave to remain outside the Immigration Rules on the basis of that relationship. It was not contended that the appellant could satisfy the Immigration Rules. Paragraph 295D of HC 395 permits the grant of leave to remain to an unmarried partner, including one in a same-sex relationship, where the couple have been “living together in a relationship akin to marriage” for 2 years. However, the appellant had not been in the relationship for a sufficient period of time to meet that requirement. In effect, the appellant asked the Secretary of State to waive the 2 year cohabitation provision in para 295D. On 4 April 2005, the Secretary of State refused his application for leave to remain. The appellant appealed. The immigration judge held that the appellant's removal would not be disproportionate and so would not be a breach of his right to private and family life protected by art 8 of the ECHR. However, he allowed the appeal because the Secretary of State's decision was unlawful by virtue of art 14 (read with art 8) on the ground that it discriminated against the appellant on the basis of his sexual orientation. The immigration judge noted that had the appellant been heterosexual and married he would not have been required to satisfy the cohabitation period. That difference in treatment could no longer be justified given the change in social policy and the recognition of civil partnerships between same-sex couples in the Civil Partnership Act 200On the application of the Secretary of State, reconsideration was ordered by a Senior Immigration Judge on 17 June 2005.
One final matter should be noted. At the time of the application, it was not possible for the appellant and his partner to register their relationship under the Civil Partnership Act 2004 which received the Royal assent on 18 November 2004 but which did not come into force until 5 December 200It was (and is) their intention to do so as soon as they are permitted by the Secretary of State whose permission, we understand, has not been forthcoming because of the appellant's immigration status.
At the outset of the hearing, we raised the issue of JM * Liberia [2006] UKIAT 00009 in which the Tribunal held that in a variation appeal under s 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 an appellant could not raise human rights grounds related to his removal from the UK, namely he could not rely on the ground in s 84(1)(g) of the 2002 Act. Ms Dubinsky informed us that the Court of Appeal had given permission to appeal on this issue in JM on 2 nd May. She submitted that the appellant's human rights case was seriously disadvantaged by the decision in JM and it would be appropriate to await the Court of Appeal's decision. The appellant's case was, in part, that his removal from the UK would interfere with his right to private and family life under Art 8 and would be disproportionate. She asked us to adjourn the case pending their decision. Ms Vidyadharan, who represented the Secretary of State, submitted that we were bound by the starred decision of JM and invited us to continue with the hearing.
We concluded that it was not appropriate to adjourn pending the Court of Appeal's decision in JM. We decided we were bound by JM as a starred determination of the Tribunal and should apply it. That does not necessarily mean, as Ms Vidyadharan submitted, that the reconsideration should succeed and the appeal be dismissed. It is open to the appellant to argue that his human rights were breached by the Secretary of State's decision to refuse to extend his leave without regard being had to the effect of any future removal, in other words he may rely on the ground in s 84(1)(e) of the 2002 Act “that the decision is unlawful under section 6 of the Human Rights Act 1998”. Whilst Ms Dubinsky understandably reserved her position on the JM issue (paras 15–17 of appellant's skeleton), the hearing before us proceeded upon that basis.
It is convenient at this point to set out the relevant legal provisions.
Immigration rules
We begin with the Immigration Rules. Paragraphs 295D-E of HC 395 provide for the grant of leave to remain to unmarried couples for a probationary period of 2 years. Previously, a concession operated outside the Rules for unmarried couples. These paragraphs came into effect on 2 October 2000and (with minor subsequent amendments) are in the following terms:
“Requirements for leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295D. The requirements to be met by a person seeking leave to remain as the unmarried partner of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules; and
(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and
(iii) the applicant is the unmarried partner of a person who is present and settled in the United Kingdom; and
(iv) the applicant has not remained in breach of the immigration laws; and
(v) the parties are not involved in a consanguineous relationship with one another; and
(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; and
(vii) the parties' relationship pre-dates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and
(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(ix) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(x) the parties intend to live together permanently.
Leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295E. Leave to remain as the unmarried partner of a person present and settled in the United Kingdom may be granted for a period of 2 years in the first instance provided that the Secretary of State is satisfied that each of the requirements of paragraph 295D are met.
Refusal of leave to remain as the unmarried partner of a person present and settled in the United Kingdom
295F. Leave to remain as the unmarried partner of a person present and settled in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 295D is met.”
At all relevant times for this appeal, paras 284–286 of HC 395 provided as follows for the extension of stay in the UK as...
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