Application No. 14753/89
by C. and L. M.
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 February
1989 by C. and L.M. against the United Kingdom and registered on 8
March 1989 under file No. 14753/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Australian citizens, mother and daughter,
born in 1961 and 1989 respectively. They live in Hemel Hempstead,
England. They are represented before the Commission by Messrs. Simon
Muirhead & Burton, Solicitors, London.
The facts of the present case, as submitted by the applicants'
representative, may be summarised as follows:
Since the age of 17, the first applicant has recognised
herself to be a lesbian. Her acknowledgement of her sexuality has
caused estrangement from her parents in Australia.
On 22 February 1984 the first applicant entered the United
Kingdom with a prior entry clearance as a working holidaymaker. She
was given leave to enter the country for six months with freedom to
take employment. The first applicant's stay was extended on similar
terms until 22 February 1986 pursuant to the provisions of paragraph
30 of HC 169 which permit young Commonwealth citizens a maximum of
two years stay with freedom to take employment.
By applications made on 27 January 1986 and 13 February 1986
respectively, the first applicant applied for leave to remain in
permanent employment as a credit controller with her employer, W.
Harold Perry Limited, and, exceptionally, for permanent residence on
the basis of her lesbian relationship with a British woman (Ms. E.)
resident in the United Kingdom. The effect of such applications was
to extend the first applicant's leave to remain in the United Kingdom
until 23 September 1987 under the Variation of Leave Order 1976.
Thereafter she was entitled to remain in the United Kingdom pending
the determination of her appeal against the decision to refuse her an
extension of stay. The application to remain as a lesbian cohabitee
was rejected on 16 September 1986, this not being a status recognised
by the statement of changes in Immigration Rules HC169, and the first
applicant was unable to show she had any other qualifying settlement
status. The application to remain for permanent employment was
rejected on 26 August 1987.
On 30 November 1987 the first applicant's appeal to an
adjudicator against the Home Office's refusal to extend her leave was
dismissed. It was conceded that the decisions were in accordance with
the immigration rules and therefore the appeal had to be dismissed,
but it was sought to elicit from the adjudicator a recommendation that
the Home Office should sympathetically reconsider her case. The
adjudicator declined to make such a recommendation. His decision
records that despite some sympathy for the first applicant in having
to part from Ms E., there was no statutory power under the Immigration
Act 1971 for him to make a recommendation when dismissing an appeal,
and that so to recommend would be at variance with what Parliament has
provided.
On 27 January 1988 the first applicant made representations to
the Home Office Minister, as did her Member of Parliament, who had
interviewed the couple and was satisfied that their relationship was a
permanent one. On 22 April 1988 the Minister rejected the
representations on the basis that there were insufficient exceptional
circumstances to warrant the exercise of his discretion to grant the
first applicant leave to remain outside the provisions of the
immigration rules. On 12 July 1988, further representations were made
to the Minister, including the fact that the first applicant was now
pregnant by artificial insemination by a donor, and wanted to have her
child in the family unit of herself and Ms. E., and that the splitting
up of such a family unit would be contrary to the European Convention
on Human Rights. On 4 October 1988 the Home Office replied that it
did not consider the pregnancy to be a sufficient reason to depart
from the immigration rules and was of the opinion that any future
deportation would not be a breach of Article 8 of the Convention.
The first applicant has been living together with Ms. E. since
April 1984. Since December 1987 they have resided in a property which
they own jointly. The couple decided to live together permanently in
about 1985. The first applicant has made only one trip to Australia
from 2 September 1985 to 10 October 1985 when she collected some
personal possessions and disposed of others. The first applicant's
cohabitee, Ms. E., has no eligibility to emigrate to Australia under
any of the Australian Immigration Rules, and, in particular, those
rules do not make provision for the admission of lesbian partners. In
any event Ms. E. would not wish to emigrate to Australia, where she
has no family or connections, as she has close family in the United
Kingdom, a job, a mortgaged house and has no experience of living in
any other society.
The first applicant gave birth to a daughter, the second
applicant, on 6 January 1989. Since confinement and the birth of the
child the first applicant is financially dependent on Ms. E. and
parenting tasks are shared between them. In the event of her
deportation to Australia with the child, the first applicant would be
homeless, destitute, and have to rely on social security payments for
the maintenance of herself and her child.
COMPLAINTS
It is submitted on behalf of the applicants that they are
victims of a breach of Articles 8, 12 and, implicitly, 14 of the
Convention.
Whilst lawfully resident in the United Kingdom the first
applicant has developed a personal relationship which is not contrary
to United Kingdom law. That personal relationship can only be pursued
in the United Kingdom, and the existence of the relationship would
give the first applicant's partner no claim to enter Australia, even
if she were willing to do so. The first applicant has conceived and
given birth to a child, the second applicant, who it is hoped will be
brought up in the "de facto" family unit of the first applicant and
Ms. E. In the circumstances the decision not to give weight to the
relationship and the birth of the child as a compassionate
circumstance justifying the first applicant's exceptional stay in the
United Kingdom is an interference with her private and family life
under Article 8 para. 1 of the Convention (cf. Eur. Court H.R.,
Berrehab judgment of 21 June 1988, Series A no. 138). It is also an
interference with the family life of the second applicant, and in so
far as her best interests are served by growing up in a stable
monogamous relationship of two persons, deportation would be a breach
of principles 2 and 6 of the United Nations Declaration of the Rights
of the Child 1959.
It is contended that this interference is not necessary in a
democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others. The first
applicant will not work until the second applicant is of school age.
She is the economic dependent of Ms. E., who is entitled to live and
remain in the United Kingdom. The family unit will not be a burden on
public funds or seek to claim housing from public sources. The facts
of the case are sufficiently particular to make it unlikely that any
exercise of discretion would undermine immigration control.
Moreover, the applicants claim that the destruction of the
family unit by deportation is discrimination on the grounds of sexual
preference because the Minister's policy towards heterosexual couples
living together in a monogamous union is far less stringent than that
for homosexual couples. The removal of the applicant and the child
also interferes with the Article 12 right of the first applicant and
Ms. E. to found a family, such right not being dependent on the right
to marry which they are unable to do under national law.
THE LAW
1. The applicants have complained that the deportation of the
first applicant constitutes an unjustified interference with their
right to respect for private and family life ensured by Article 8
(Art. 8) of the Convention, the relevant part of which provides as
follows:
"1. Everyone has the right to respect for his private
and family life ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of ... the economic well-being
of the country, for the prevention of disorder or crime,
... or for the protection of the rights and freedoms of
others."
Whilst the Convention does not guarantee a right, as such, to
enter or remain in a particular country, the Commission has constantly
held that the exclusion of a person from a country where members of
his close family reside may raise an issue under Article 8 (Art. 8) of the
Convention (e.g. No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No.
9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82,
D.R. 29 p. 205).
As regards the question whether the first applicant's
relationship with her lesbian partner falls within the protection of
Article 8 (Art. 8) of the Convention the Commission would refer to comparable
case-law concerning a homosexual partnership:
"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 (Art. 8).
On the other hand, as the Commission and Court have
recognised in the case of Dudgeon (Eur. Court H.R.
judgment of 22 October 1981), certain restraints on
homosexual relationships could create an interference
with an individual's right to respect for his private
life ensured by Article 8 (Art. 8). The Commission finds that
the applicants' relationship is a matter of their private
life and the question arises whether the deportation
order, ... requiring the first applicant to leave the
United Kingdom, constituted an interference with the
applicants' right under Article 8 (Art. 8)" (No. 9369/81, Dec.
3.5.83, D.R. 32 p. 221).
Since the above-cited decision the Commission has further
held, in a case concerning the lawful extradition of a foreigner, that
whilst such a measure must necessarily affect private life, it "cannot
in principle be regarded as an interference with the right to respect
for private life protected by Article 8 (Art. 8) of the Convention" (No.
10427/83, Chandra v. the United Kingdom, Dec. 12.5.86, D.R. 47 p. 85).
In the light of this case-law, the Commission finds that a
lesbian partnership involves private life, within the meaning of
Article 8 (Art. 8) of the Convention. However, although lawful deportation
will have repercussions on such relationships, it cannot, in
principle, be regarded as an interference with this Convention
provision, given the State's right to impose immigration controls and
limits. In the present case, the Commission finds no exceptional
circumstances to justify a departure from these considerations. It,
therefore, concludes that there has been no interference with the
applicants' right to respect for private life ensured by Article 8
(Art. 8) of the Convention and that this aspect of the case is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants have next complained of discrimination on the
grounds of sexual preference, insofar as British immigration policy
gives better protection to heterosexual couples than to homosexual
couples.
The relevant part of Article 14 (Art. 14) of the Convention
provides as follows:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, ... or other status."
The Commission refers to previous case-law concerning the
better protection under housing legislation for established
heterosexual couples rather than lesbian couples:
"The Commission accepts that the treatment accorded to the
applicant (a recognised lesbian) was different from the
treatment she would have received if the partners had
been of different sexes.
The Commission finds that the aim of the legislation in
question was to protect the family, a goal similar to the
protection of the right to respect for family life
guaranteed by Article 8 (Art. 8) of the Convention. The aim itself
is clearly legitimate. The question remains, however, of
whether it was justified to protect families but not to give
similar protection to other stable relationships. The
Commission considers that the family (to which the
relationship of heterosexual unmarried couples living
together as husband and wife can be assimilated) merits
special protection in society and it sees no reason why
a High Contracting Party should not afford particular
assistance to families. The Commission therefore accepts
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."
(No. 11716/85, Dec. 14.5.86, D.R. 47 p. 274).
The Commission adopts the same reasoning as regards the
present case: the immigration rules in question give priority and
better guarantees to traditional established families, rather than
other established relationships like a lesbian partnership. The
Commission finds no element of discrimination, contrary to Article 14
(Art. 14) of the Convention, in such a policy, given the special
protection to be afforded to the traditional family. Accordingly
the Commission concludes that this aspect of the case is also
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. Finally the applicants have complained that the proposed
deportation violates Article 12 (Art. 12) of the Convention which
guarantees to "men and women of marriageable age ... the right to
marry and to found a family, according to the national law governing
the exercise of this right".
The Commission refers to the case-law of the European Court of
Human Rights in the Rees case concerning transsexuals:
"In the Court's opinion, the right to marry guaranteed by
Article 12 (Art. 12) refers to the traditional marriage between
persons of opposite biological sex. This appears also
from the wording of the Article which makes it clear that
Article 12 (Art. 12) is mainly concerned to protect
marriage as the basis of the family. Furthermore, Article
12 (Art. 12) lays down that the exercise of this right shall
be subject to the national laws of the Contracting States.
The limitations thereby introduced must not restrict or
reduce the right in such a way or to such an extent that the
very essence of the right is impaired. However, the legal
impediment in the United Kingdom on the marriage of persons
who are not of the opposite biological sex cannot be said to
have an effect of this kind. There is accordingly no
violation in the instant case of Article 12 (Art. 12) of the
Convention." (Eur. Court H.R., Rees judgment of 17 October
1986, Series A no. 106, p. 19 paras. 49-51)
In the light of this case-law, the Commission considers that
the first applicant's relationship with her lesbian cohabitee does not
give rise to a right to marry and found a family within the meaning of
Article 12 (Art. 12) of the Convention. The Commission concludes,
therefore, that this part of the application is incompatible ratione
materiae with the provisions of the Convention, pursuant to Article
27 para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy