AS TO THE ADMISSIBILITY OF
Application No. 12513/86
by W.J. and D.P.
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 11 September 1986
by W.J. and D.P. against the United Kingdom and
registered on 27 October 1986 under file No. 12513/86;
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 first applicant is a citizen of New Zealand, born in 1953
and resident in Middlesex with the second applicant, who is a citizen
of the United Kingdom. They are both teachers by profession.
They are represented before the Commission by
Messrs. Myers, Ebner & Deaner, Solicitors, London.
The facts as submitted by the applicants, and which are
apparent from the official documentation lodged with the application,
may be summarised as follows:
The first applicant went to the United Kingdom in October 1979
and was given six months' leave of entry with no restriction on
employment. After a short absence from the country, he returned on
7 January 1980 and was given six months' further leave of entry
without conditions. On 7 April 1980 the first applicant applied to
remain in the United Kingdom as a working holiday-maker. This leave
was granted at periodic intervals until 8 July 1983 when the final
extension was accorded, because the maximum period for this category
of leave is five years.
On 1 October 1984 the applicants' solicitors wrote to the Home
Office requesting indefinite leave to remain on behalf of the first
applicant. The grounds of the application were that he had a
permanent teaching contract, and that since April 1982 he had been
living with the second applicant in a stable homosexual relationship.
Alternatively a further periodic extension of leave was requested.
The application was referred to the Department of Employment, but they
refused to approve the first applicant's employment. The Home
Secretary considered the question of the stable homosexual
relationship, but decided that the Immigration Rules made no provision
for a person to remain in the United Kingdom on that basis. Having
considered all the circumstances, the Home Secretary refused the
application on 21 August 1985, under the Statement of Changes in
Immigration Rules HC 169 para. 100. The relevant part of this
paragraph provides that visitors who have been given leave of entry
without a work prohibition may only have their leave varied for work
if the Department of Employment approves the proposed employment.
Where the Department withholds approval, an extension of leave is to
be refused.
The first applicant appealed against the Secretary of State's
decision to an Adjudicator. The Adjudicator dismissed the appeal on
12 June 1986, upholding the lawfulness of the Secretary of State's
decision under the Immigration Rules, and declining jurisdiction to
review the Secretary of State's refusal to exercise his overriding
discretion in leave matters in the first applicant's favour (cf.
Section 4 Immigration Act 1971). Leave to appeal to an Immigration
Appeal Tribunal was apparently refused on 18 July 1986. The first
applicant is now faced with imminent deportation. The second
applicant states that he would not be admitted to New Zealand to work
as enquiries have revealed that he would not be considered eligible
for the "occupational priority list".
COMPLAINTS
The applicants complain of violations of Articles 1, 8 and 14
of the Convention in respect of the refusal by immigration authorities
to allow the first applicant to remain in the United Kingdom on the
basis of his stable homosexual relationship with the second applicant,
and in respect of the absence of any recognition in the Immigration
Rules of such a relationship.
It is submitted on the applicants' behalf that no individual
consideration was given to their case and that there was no hearing of
these issues. They are both useful, law-abiding citizens, hardworking
and well-balanced, living quietly together as a family unit.
The Immigration Rules and legislation make no provision for
homosexual relationships, whilst recognising the heterosexual
relationships of married couples and fiancés. However, United
Kingdom law permits homosexual acts in private between consenting
adults (cf. Sexual Offences Act 1967). Thus no issue of public policy
or morality arises which might justify discrimination against
homosexuals (cf. Eur. Court H.R., Marckx judgment of 13 June 1979,
Series A no. 31, Dudgeon judgment of 22 October 1981, Series A no. 45
and No. 10581/83, Norris v. the United Kingdom, Dec. 16.5.85 to be
published in D.R.).
The applicants claim that the failure to treat their
relationship in the same manner as that of heterosexuals under the
Immigration Rules is contrary to Articles 8 and 14 of the Convention.
There has been an unjustified interference with their private life in
requiring the first applicant to leave the country despite his
irreproachable behaviour (cf. Brüggemann and Scheuten v. the Federal
Republic of Germany, Comm. Report 12.7.77, D.R. 10 p. 100, para. 55
and Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of
28 May 1985, Series A no. 94).
As regards the Commission's decision in No. 9369/81 (Dec.
3.5.83, D.R. 32 p. 220) concerning a homosexual couple and a
deportation question, the applicants contend that, in contrast to that
case, no careful consideration has been given to their personal
situation by the immigration authorities and they are not
professionally mobile. They claim to have made enquiries with the New
Zealand authorities which disclosed that their transfer to that
country is impossible. The present case seeks to challenge the
discrimination in the Immigration Rules themselves.
As regards the Commission's decision in No. 11716/85 (Dec.
14.5.86 unpublished) concerning the question of a lesbian unable to
benefit from her partner's tenancy rights, the applicants, considering
that the Commission's rejection of that case was justified, contend
that no comparison can be made between that case and the present
deportation issues.
THE LAW
1. The applicants complain that the refusal to allow the first
applicant to remain in the United Kingdom with his homosexual partner,
the second applicant, constitutes an unjustified interference with
their private life, contrary to Article 8 (Art. 8) of the Convention, and
discrimination, compared with heterosexual couples, contrary to Article 14
(Art. 14) of the Convention. They have also invoked Article 1 (Art. 1) of the
Convention. Their complaints relate to the immigration laws themselves as well
as to their application in this case.
2. The relevant parts of the provisions of the Convention invoked
by the applicants provide as follows:
Article 1 (Art. 1)
"The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in
Section 1 of this Convention."
Article 8 (Art. 8)
"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 ... "
Article 14 (Art. 14)
"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."
3. As regards the applicants' citation of Article 1 (Art. 1) of the
Convention, the Commission refers to its constant case-law that
Article 1 (Art. 1) contains a purely general undertaking and that, even in
conjunction with other Articles, it should not, in principle, be seen
as a provision which can be the subject of a separate breach of the
Convention (cf. No. 5493/72, Handyside v. the United Kingdom, Dec.
4.4.74 Collection 45 p. 20 and Ireland v. the United Kingdom, Comm.
Report 25.1.76, Eur. Court H.R. Series B no. 23-I pp. 491-492).
In the absence of any explanation from the applicants as to
why their claims should be considered separately under Article 1 (Art. 1) of
the Convention, independently of the other allegations they have made,
the Commission concludes that this aspect of the case does not
constitute a separate issue requiring determination.
4. As regards the applicants' complaints under Article 8 (Art. 8) of the
Convention, the Commission recalls its constant case-law that the
Convention does not guarantee a right, as such, to enter or remain in
a particular country. However, the Commission has also held that, in
certain circumstances, the exclusion of a person from a country where
his close relatives reside may raise a family life issue under Article 8
(Art. 8) of the Convention (cf. 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. 9258/81,
Dec. 6.7.82, D.R. 29 p. 205).
The applicants contend that their stable relationship is
comparable with family life and merits similar protection as private
life under Article 8 (Art. 8) of the Convention. They claim that the absence
of consideration for homosexual relationships in the relevant
Immigration Rules, the alleged absence of individual consideration of
their case by the immigration authorities, and the authorities' actual
refusal to recognise that relationship by allowing the first applicant
to remain in the United Kingdom with the second applicant, violate
their right to respect for private life ensured by Article 8 (Art. 8) of the
Convention.
The Court and the Commission have previously held that
homosexual relationships do not fall within the ambit of family life,
but rather fall within the notion of private life under Article 8 (Art. 8) of
the Convention (cf. Eur. Court H.R. Dudgeon judgment of 22 October
1981, Series A no. 45 para. 41 and No. 9369/81, Dec. 3.5.83, D.R. 32
p. 220). It is clear that a refusal to allow a person to remain in a
country where he has been living and working for several years must
result in a disruption of his private life. However, this inevitable
disruption cannot, in principle, be regarded as an interference with
the right to respect for private life, ensured by Article 8 (Art. 8) of the
Convention, unless the person concerned can demonstrate that there are
exceptional circumstances in his case justifying a departure from that
principle (cf. No. 10427/83, Dec. 12.5.86 to be published in D.R.).
Accordingly, the Commission finds that the absence in United Kingdom
Immigration Rules of settlement rights for non-nationals in respect of
their stable, private relationships, other than family relationships,
does not, of itself, disclose any appearance of a violation of
Article 8 (Art. 8) of the Convention.
As regards the factual circumstances of the present case, the
Commission notes that the applicants have had a stable homosexual
relationship and have lived together since April 1982. However, the
first applicant entered that relationship in the knowledge that his
immigration status was unsettled and that he would only have a maximum
of two further years' leave to remain in the United Kingdom as a
working holiday-maker. Apart from this relationship with the second
applicant and his necessarily short-term employment because of his
limited immigration status, the first applicant has no other ties with
the United Kingdom. The Commission finds no substantiation in this
case for the applicants' claim that no individual consideration has
been given to their particular circumstances by the Secretary of State
in exercise of his overriding discretion pursuant to Section 4 of the
Immigration Act 1971. Nor have the applicants provided any
substantiation of their claim that it would be impossible to live
together in New Zealand or elsewhere. At no time have the applicants
been prevented from developing their relationship.
In the light of the above considerations, the Commission
concludes that the present case does not disclose any exceptional
circumstances which might justify a departure from the aforementioned
general principle. The Commission concludes, therefore, that the
refusal to allow the first applicant to remain in the United Kingdom
does not constitute an interference with the applicants' right to respect for
private life, ensured by Article 8 (Art. 8) of the Convention. It follows that
this aspect of the application is manifestly ill-founded.
5. Finally, the applicants have complained of discrimination
contrary to Article 8 (Art. 8) of the Convention, read in conjunction with
Article 14 (Art. 14), because homosexual relationships do not receive the same
protection under the Statement of Changes in Immigration Rules HC 169
as heterosexual relationships.
It is true that these Immigration Rules make no provision for
the reunification of homosexual couples in the United Kingdom, whereas
they do permit, inter alia, certain foreign spouses and fiancés to
join their partners in the United Kingdom, where the latter have the
right of abode.
The Commission has had occasion to consider such policy
distinctions between homosexual and heterosexual couples. In a case
concerning a lesbian relationship and housing policies, the Commission
decided as follows:
"The Commission accepts that the treatment accorded to the
applicant 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 to be published in D.R.)
The Commission adopts these general considerations for the
purposes of the present case and the immigration laws which are
involved here. With regard to the principle of proportionality (Eur.
Court H.R., Belgium Linguistic judgment of 23 July 1968, Series A no.
6, p. 34) the Commission finds that no issue of proportionality arises
between the aims of the relevant Immigration Rules and their
application to the applicants, as the family life provisions of the
Rules did not apply in this case. The first applicant was refused
leave to remain further in the United Kingdom, not because he was a
homosexual, but because he was not in employment approved by the
Department of Employment (Statement of Changes in Immigration Rules HC
169 para. 100). In this respect the Commission considers that the
principle of proportionality between the means employed and the aim
sought to be realised, i.e. the economic well-being of the country,
was respected.
After its examination of this aspect of the application the
Commission concludes that it discloses no appearance of discrimination
contrary to Article 14 (Art. 14) of the Convention. Accordingly this part of
the application must also be rejected as being manifestly ill-founded,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)