"Family visitor" defined to include unmarried partners

Other new immigration regulations (SI2000/2446 and 2244) include the phrases "member of family" and "family visitor" .The latter is in the context of giving people the right to appeal if they are refused a visa to visit a family member. These phrases are, for the first time, defined to include unmarried partners (including same sex) where a couple have been living together for two of the preceding three years. Anyone who applies for a visitors visa in order to visit their partner will have a right of appeal if it is refused but only if they have lived together with their partner for two of the preceding three years. This obviously will be of no help to those visiting their partner in order to build up the two years so they can make a relationship application - their only remedy for a visitors visa refusal will remain judicial review (and possibly a Human Rights Act appeal - see over).

Partners of EEA nationals

The Regulations (SI 2000/2326) setting out who can accompany an EEA national to the UK have been changed to include "members of the household". This is defined as a person who (a) is dependent on the EEA national; (b) is living as part of the EEA nationals household outside the UK or (c) was living as part of the EEA nationals household before the EEA national came to the UK.

This new regulation is open to interpretation and on the face of it there would appear to be nothing stopping a non European partner of an EEA national from claiming to be a member of the household if the above conditions are met regardless of the length of the relationship. This interpretation would comply with the purpose and spirit of European Union law, which is to place no obstacles in the way of a person exercising their freedom of movement rights.

Human Rights Act - How it might help

The unmarried partners concession has dramatically changed many people's lives for the better. However there are still those who despite the concession (or Rule as it is now) remain separated from their partners or face removal from the UK because they do not meet the requirements of the Rule.

The answer for some may lie in the new Human Rights Act combined with the coming into force of the Immigration and Asylum Act 1999. These incorporate the European Convention on Human Rights into British law and mean that any immigration decision can be appealed against if it breaches a person's human rights. Article 8 of the Convention gives everyone the right not to have their private life interfered with by the Government unless it can be justified. It is arguable that insisting that you have two years continuous cohabitation before allowing you to enter or extend your stay in the UK is an unjustified interference with your right to have a relationship with the person of your choice. Subsequent removal of a person from the UK causing a separation is likely to be a breach of Article 8 if there are real obstacles to the couple continuing their relationship elsewhere.

To make out a claim that removal (or continued separation) breaches the Human Rights Act it will be necessary to consider the following in respect to the country of origin of the foreign partner;

• Is the British (or settled) partner entitled under the immigration laws of his partners country of origin to join him/her there.
• If so, are they able to meet the requirements imposed by those laws
• Can the British partner speak the language
• Will the British partner be entitled to and be able to obtain employment
• Will the British partner be able to continue to pursue his/her career
• Would the "moral and physical integrity" of either party be at risk (i.e. would they face prosecution for homosexual acts or would they face violence/harassment from the government, general populace or family members)
• Is it reasonable to expect the other family members to leave the country of their home and citizenship considering their other family ties.

Depending on the answers to these questions it may be possible to show that there are clear obstacles to continuing your relationship if removal takes place or separation continues. If the partner is from the EU rather than being British the same questions arise but you will also need to consider whether the couple can live together in the EU country.

Once you have established that there are obstacles to you continuing your private life in the foreign partners country the burden shifts to the Home Office to justify the interference with your private life. They can only justify it on the basis of specified legitimate aims and the interference has to be proportionate to the aim pursued.

There appears to be great scope for immigration adjudicators to find that either no legitimate aim is being pursued or that separation is such a drastic consequence as to be disproportionate to any aim pursued. There is no case law from the European Court of Human Rights on a gay immigration case to influence adjudicators one way or the other. The four "homosexual immigration cases" that have been taken to Europe to date were all declared inadmissible so never reached the Court. Lawyers representing should however be aware of these cases and the admissibility decisions can be found at the Council of Europe's website at www.coe.fr. The cases are; 16106/90, 14753/89, 12513/86, and 9369/81.

There is also scope for argument that the two year rule is discriminatory on the grounds of marital status since it does not apply to married couples. This discrimination is arguably in contravention of Article 14 of the ECHR combined with Article 8. Discriminatory treatment in the immigration context is in itself arguably degrading or inhuman treatment contrary to Article 3 of the ECHR (the Court has previously held racial discrimination in the immigration context to breach Article 3). An excellent text on the subject is "Sexual Orientation and Human Rights" by Robert Wintemute, Clarendon Press Oxford, 1995.

Our Website

The new Sig website at www.stonewall-immigration.org.uk, entirely produced in house by one of our volunteer team, was launched simultaneously with the office move and has proved an invaluable resource.

>From 20th June to 8th September, 2000, over 2,800 people have visited the site which contains a full copy of the briefing document (recently updated to reflect the change from concession to immigration rule) and includes advice on how to fill out the new form FLR(M).

In the same period our volunteers have received and answered over 450 emails and we continue to operate an information phone line three afternoons/evenings per week.

There could hardly be a clearer indication of the ongoing need for the Stonewall Immigration Group.

By Martin Abele

The Swiss government, the Bundesrat, has decided, that lesbian and gay couples must receive a legal recognition of their partnerships. The federal departement of Justice is now officially mandatet to present a draft for a registered partnership. The new law however shall not lean on to the established Scandinavian model. The Bundesrat expressingly wishes a solution, that keeps clearly distinct from marriage.

Mandated by a parliamentary resulution dating back to 1996, the departement of Justice last year published a report on the situation of gay and lesbian couples in Switzerland. It then presented four possible solutions for their judicial problems. The reactions to this promulgation showed that a vast majority of the Swiss cantons (regions), partys and organisation favoured the model of a registered partnership. However, many of them demanded, it had to be clearly evoided, that the marriage could be devaluated by the new law.

The minister of Justice, Christian Democrat Ruth Metzler, now took up these voices and decided for a light version of the registered partnership. She argued, religious feelings of the people had to be taken in mind. "The new law", said Metzler, "should take in consideration the special nature of same-sexe-couples". In the ministers opinion these are for example, that gays and lesbians don't have children and that normally both of them are earning money. Metzler herself does not have children and both her and her husband are money-makers.

The Swiss gay federation Pink Cross and the lesbian organisation LOS commented the decision as diappointing. LOS-spokeswoman Gioia Hofmann said: "We want the same rights, not special rights". And the president of Pink Cross warned, the governments decision kept the door open for further discriminations. "There is a big risk, that at the end of the legislativ process only a poor product will remain", he noted. The new law is expected to come into force not before the year 2003.

Federal court rules against lesbian couple

This is already the second disappointment for the Swiss gay and lesbian movement within two month, after this augusts ruling of the federal court, that the foreign partner of a lesbian woman was not granted the right to stay in Switzerland. Two judges voted in favour of the couple, three against. The judges ruled, that on principal foreign partners of Swiss homosexuals do have the right to receive a residence permit. In this case however, they ruled it bearable for the couple to live in the partners home-country New Zealand. The two women got to know each other in New Zealand and also spent the last year there, after the local authorities had rejected the request for a residence permit. The judgement is rather schizophrenic, since it recognises the right of lesbian and gay couples to receive a residence permit if they live in a stable long-term-partnership, but at the same time doesn't leave the possibility to settle in Switzerland.

PS: For more informations in German see: https://pinkcross.ch/german/fax.html https://tagesanzeiger.ch/ta/taZeitungRubrikArtikel?ArtId=43577&ausgabe=329 https://tagesanzeiger.ch/ta/taFrameSet.html?framemitte=/service/smdsearch/in dex.htm&framerechts=/service/archiv_nav.htm

by Helmut GRAUPNER, Rechtskomitee LAMBDA, Vienna

After the landmark judgements of the new European Court of Human Rights in Strasbourg, Lustig-Prean & Beckett, Smith & Grady vs. UK and Salgueiro da Silva Mouta of last year and A.D.T vs. UK this year, the Court issued a decision which turns out as a major backlash for l/g/b (human) rights.

In 1996 the Hungarian Constitutional Court declared constitutional the ban on gay (rights) organisations which do not restrict membership to persons over 18. In its reasoning the Court speaks of adolescents as "children" (whereas no language in the world ever used the term "child" for persons after their early teens) and considers membership in gay or lesbian (rights) organisations to involve concrete risks endangering the development of the "child". The state had to protect the "child" from taking risks in connection with which, because of his/her age (presumed to correlate with physical, mental, moral and social maturity), he/she is not able get to know and evaluate either the possibilities or the consequences of his/her choices for his/her own personality, later life and social adaptation. Also lesbian, gay and bisexual adolescents would have to go along with the age limit "exactly in the interest of minors of the same age group which is to be protected". According to the Hungarian Constitutional Court the setting of an age limit for membership primarily protects the responsible and mature decision of those who will bear the consequences of their decision for their whole life.

The (potential) founders of the gay organisation involved applied to the European Court on Human Rights which delivered its decision on 12th May 2000 (Szivárvány, Juhász & Palfy vs. Hungary, appl. 35419/97). In this decision the Court declared the application as being manifestly ill-founded and therefore inadmissible. The reasoning of the Court confines itself to the statement that the ban of persons under 18 from membership in gay (rights) organizations was prescribed by law, pursued the legitimate aims of protection of morals and the rights and freedoms of others, and that the inference (the ban) was proportionate to the aim pursued and could, therefore, reasonably be regarded as necessary in a democratic society. Mere repetition of the criteria a law has to fulfil to be in conformity with the Convention. But no reasons why these criteria should be fulfilled. And moreover the Court even departed from its hitherto case-law (starting with the Handyside-Judgement 1976) which established that an inference for being qualified as being "necessary in a democratic society" there must be a "pressing social need" for the inference in questions and a relationship of proportionality between the means employed and the aims sought. In the current decision the Court does away with the requirement of a "pressing social need" for the inference and lets a relationship of proportionality suffice.

The decision is not only deplorable in its core area, the right of association (Art. 11 ECHR)) (e.g. l/g/b youth groups can now be banned by law!!), but also is bad news for the four age of consent cases currently pending before the Court (one from the UK and three from Austria). It seems not clear if the applicants made an equality argument (Art. 14) as well but nevertheless this decision lets fear for the age of consent cases since on the one hand the Court does not feel itself to be bound by the arguments of the parties and on the other the reasoning of the Hungarian Constitutional Court, now upheld by the European Court of Human Rights, painfully reminds of the traditional justifications put forward to defend discriminatory age of consent regulations: that homosexuality were the result of a decision, that such a decision involved concrete risks for personality, later life and social adaptation, that it had consequences which had to be borne for the whole remainder of one's life and that therefore minors have to be banned from taking such potentially dangerous decisions …

Hungarian Constitutional Court
DECISION 21/1996: 17 MAY 1996
ON THE MINIMUM AGE FOR MEMBERSHIP OF HOMOSEXUAL-ORIENTED ASSOCIATIONS

DECISION.

1. The right of the child to protection and care necessary for proper physical, mental and moral development to be provided by the State (Art. 67(1) of the Constitution) establishes the constitutional duty of the state to protect the development of the child. This duty of the State serves as a constitutional basis for the legislature or the courts to restrict -- primarily in the public sphere -- the child in exercising his/her fundamental rights, including the right of association guaranteed in Art. 63 of the Constitution.

Article 67 of the Constitution also means that the state has to protect the child -- beside influences harmful to his/her development -- from taking risks in connection with which, because of his/her age (presumed to correlate with physical, mental, moral and social maturity), he/she is not able get to know and evaluate either the possibilities or the consequences of his/her choices for his/her own personality, later life and social adaptation.

2. On the basis of the above, the child's membership in associations "related to homosexuality" can be excluded or restricted in laws or in court decisions. The actual restriction on the child's exercise of his/her right of association has to adjust to the concrete risk endangering the development of the child. In the course of considering whether the right of the child to protection for his/her development may lead to the restriction on his/her right of association, the age of the child and the nature of the association has to be evaluated together and from the point of view of whether the child is able to know and evaluate the choices in connection with his/her relationship to homosexuality and the consequences of his/her choice for his/her own personality, later life and social adaptation, including those consequences which might ensue from membership in the association in question and the public assumption of the concept of homosexuality prevalent there.

REASONING

[...] The first argument of restriction -- the protection of mature decision about how to relate to his/her own homosexuality -- does not, of course, apply to the minor motivated solely by rights protection. The necessity of restricting the right of association which was founded by the interest of homosexual or potentially homosexual minors, also extends to them. They have to go along with the age limit exactly in the interest of minors of the same age group which is to be protected. For setting an age limit for membership primarily protects the responsible and mature decision of those who will bear the consequences of their decision for their whole life."

Warsaw (23 October 2000) By Kurt Krickler

Thank you for giving me the opportunity to address this meeting on behalf of the European Region of the International Lesbian and Gay Association (ILGA), a federation of organisations fighting for equality and equal rights of lesbian, gay, bisexual and transgendered people and against discrimination based on sexual orientation. ILGA-Europe has around 160 member organisations in almost all European countries.

ILGA has been participating as an NGO in the Human Dimension of the OSCE since the Moscow meeting in 1991. Since 1993, we have been presenting oral statements to the Human Dimension, reporting positive developments in participating States but also reminding non-complying States to honour their commitments entered not only under the OSCE process but also under the International Covenant on Civil and Political Rights and the European Human Rights Convention.

Since last year's Review Conference in Vienna, we can note that some quite remarkable and substantial progress has been made in particular at the European level:

The Parliamentary Assembly of the Council of Europe voted two historic reports and resolutions. On 30 June, one on the "situation of gays and lesbians and their partners in respect to asylum and immigration in the member states of the Council of Europe", calling for the recognition of persecution on the grounds of sexual orientation for the purposes of asylum and for granting bi-national same-sex couples the same residence rights as bi-national heterosexual couples. Only a month ago, on 26 September, the other resolution - on the "situation of lesbians and gays in Council of Europe member states" was adopted calling upon all 41 member states to include sexual orientation among the prohibited grounds for discrimination in national legislation; to decriminalise homosexuality among consenting adults, to apply the same minimum age of consent for heterosexual and homosexual acts, and to give legal recognition to same-sex couples by providing registered partnership legislation.

This is indeed a very far-reaching Recommendation. And perfectly in line with recent judgements of the European Court of Human Rights. In September last year, the Court ruled that the ban against gays and lesbians to serve in the British armed forces constitutes a violation of the European Human Rights Convention, challenging similar provisions in Germany, Greece, Poland and Turkey. In December 1999, the Court ruled that the decision of a Portuguese court to take away from a man custody rights over his daughter because of his homosexuality also was in breach of the Convention. And in July of this year, the Court ruled that the total ban in the United Kingdom on homosexual acts between consenting adult men in case that more than two persons are involved, again constitute a violation of the Convention.

Also at European Union level, there have been some very positive developments in the last twelve months. On the very day of the opening of this meeting, last Tuesday, the Council of Social Affairs ministers adopted a directive to prohibit discrimination on various grounds, including sexual orientation, in all aspects of employment and occupation. Within three years, all 15 Member States will now have to implement the directive into national anti-discrimination laws. And all 13 accession countries will also have to implement this directive before joining the EU. On the same occasion, the Council adopted a 6-year programme to combat discrimination on various grounds, with a budget of almost 100 million euros.

Earlier this month, the Convent tasked to draw up a Charter of Fundamental Rights of the European Union presented its draft to the European Council meeting in Biarritz. Article 21 in this draft provides for the prohibition of all discrimination based, among other grounds, on sexual orientation.

Clearly, ILGA-Europe is quite satisfied with all these extremely positive developments at the European level. Therefore, we feel it is time for the OSCE to also speak out against discrimination on the grounds of sexual orientation in an appropriate statement. This aspect of human rights should no longer be ignored by any platform of significance.

Also at the national level we can report some positive achievements. I will only mention a few, the most important ones: Azerbaijan repealed the total ban on male homosexual relations, Armenia accepted a similar commitment in the context of her admission to the Council of Europe. France has introduced registered partnership legislation last October, and the Dutch Parliament, last month, voted to open up even traditional marriage for same-sex couples.

However, there are still a few countries that prefer to completely ignore these developments and resolutions and continue to violate basic human rights of homosexuals. One of the worst cases among all OSCE countries certainly is Austria where the discriminatory age of consent continues to be applied. This summer the case of a 20 year old men who was convicted because he, at the age of 19, had a consenting sexual relation with another young man, who was almost 17, made international news. Similar cases have been reported in the last months. In another case in Austria, the abuse of psychiatry and justice against one homosexual convicted under this provision can only be compared to the abuse in former Soviet gulags. The man was sentenced to a one-year prison term and due to previous convictions, to detention in an institution for mentally abnormal offenders. When the Court had to do its annual review with regard to the necessity for a continuing detention, the prolongation of the detention was ordered although neither the judge nor the psychiatrist who gave his expert assessment had seen the detainee face-to-face.

The European Union missed a unique chance to force Austria to stop these human rights violations against homosexuals this summer when the 14 failed to put this as a condition for lifting the measures against the Austrian government. By doing so the European Union not only approved of these human rights violations and reinforced Austria in its position but also gave the impression that human rights violations against homosexuals actually do belong to the so-called common European values.

Austria has ignored two recommendations by the Council of Europe, five resolutions by the European Parliament, a decision by the European Human Rights Commission and a request by the United Nations Human Rights Committee after its consideration of Austria's third periodic report submitted under Article 40 of the International Covenant of Civil and Political Rights, all demanding the repeal of this criminal law provision.

The refusal of Austria to stop these human rights violations is a disgrace for Europe. We, therefore, strongly appeal to all of you to exert pressure on Austria to stop these abuses, stop the gulag and to immediately release from prison all those jailed under this law, a demand also made by the European Parliament on two occasions already.

ISRAEL LOWERS AGE OF CONSENT FOR GAY SEX

By Rex Wockner

Israel has lowered the age of consent for gay sex from 18 to 16, in line with that for heterosexuals.

The penal code was changed in July but the move was not publicized until Nov. 1 when gay activists realized that gay teens were unaware of the change.

Homosexual relations also were legalized for 14- and 15-year-olds as long as their sexual partners are not more than three years older than they are.

Many European nations have a lower age of consent than Israel, including Malta, the Netherlands, Portugal and Spain (12); Germany, Iceland, Italy, San Marino and Slovenia (14); and the Czech Republic, Denmark, France, Greece, Poland, Slovakia and Sweden (15), according to testimony presented to the Knesset by the Association for Civil Rights in Israel and the Association of Homosexuals and Lesbians.

c/o Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610 Copenhagen V, Denmark

Email: steff@inet.uni2.dk

Fax: +45 4049 5297

Tel: +45 3324 6435

Mobile: +45 2033 0840

You can receive Euro-Letter by e-mail by sending an empty message to euroletter-subscribe@makelist.com; from no 30 onwards the Euro-Letters are available on the Internet at www.ilga-europe.org et www.fqrd.fr.