Date: Fri, 23 Feb 1996 17:30:25 +0000 From: Mark Watson Subject: Stonewall Press Release (Immigration Amendment) PRESS RELEASE Stonewall Press Release Friday 23 February 1996 Embargo: Immediate release Minister attacks unmarried heterosexuals to get at lesbian and gay couples. In response to calls from MPs to include lesbian and gay relationships in the immigration rules the Immigration Minister Timothy Kirkhope stated that the long standing policy of treating unmarried heterosexual couples the same as married couples for immigration purposes has been withdrawn. A Stonewall amendment to the new Asylum and Immigration Bill, which would have obliged the Secretary of State to make provision for both homosexual and heterosexual common law relationships in the immigration rules, was proposed by Labour MP for Walthamstow, Neil Gerrard and Conservative MP for Brigg and Cleethorpes Michael Brown. The amendment was based on the Australian immigration rules which include a category for "Interdependent partners". In a cynical move Timothy Kirkhope rejected the amendment stating The only objective test for the strength of a relationship in an immigration context is marriage. He went on to say that from now on only married couples can apply to remain together. Alan Howarth MP pointed out that Australia, Canada, Denmark, Finland, the Netherlands, Norway, New Zealand and Sweden all manage to asses whether a common-law relationship is genuine or not and have provisions for same-sex relationships in their immigration rules. Mark Watson, Chair of the Stonewall Immigration Group stated This is a cynical move by the Home Office to get at us. Since 1988 the Home Office have allowed foreign common-law spouses to remain in the UK. It is only because lesbians and gay men have demanded that they be treated the same that the Home Office is changing that policy. The Minister states that you have to be married but wont let lesbians and gay men marry. What does he expect us to do? We are not going to go away and we refuse to enter into bogus straight marriages - we are here to stay and sooner or later the Minister will have to recognise that fact. ENDS For further information please call Mark Watson on 0171 336 8860. Notes to editor: The Home Office have operated a policy of treating common-law heterosexual relationships as akin to marriage if they believe the relationship is genuine and subsisting despite there being no provision in the Immigration rules. Stonewall have long argued that the same practice should be applied to lesbians and gay men in long term committed relationships. Stonewalls amendment would have tidied up the immigration rules by making provision for both heterosexual and homosexual common law relationships. In 1995 about 60 applications by lesbian and gay couples were submitted to the Home Office, the average length of relationship being about 5 years. 3 were granted on compassionate grounds all the rest were refused and fighting their cases through the courts. The Home Office conceded on 9 of these when it looked like they would lose in the courts. Amendment to the Asylum and Immigration Bill Asylum and Immigration Bill After Clause 2 of Schedule 1 Insert the following new Clause___ ("Dependants .___(1) In subsection (4) of Section 1 of the 1971 Act (general principles) at the end there shall be inserted the words ", including the spouse or interdependent partner of such persons.". (2) In subsection (1) of Section 33 of the 1971 Act (interpretation), after the definition of "immigration rules" there shall be inserted the following definition___ "interdependent partner" means "a person in a genuine and continuing relationship of interdependency with one other person which involves living together and a mutual commitment to a shared life.".") Background The current position is that the immigration rules make no provision for unmarried relationships, whether heterosexual or homosexual. However the Home Secretary has issued policy guidelines for unmarried cohabiting heterosexuals and even mistresses of British citizens. This policy is set out in Home Office instruction DP/2/93 and instructions to Immigration officers dated November l985. In 1993 400 unmarried heterosexuals were allowed to stay on the basis of their relationship, however similar applications from lesbian and gay couples were all refused, despite two Immigration Tribunal decisions stating that the most appropriate manner for dealing with such applications would be to consider the relationships as partnerships and judge them accordingly. British lesbians and gay men have effectively lesser rights as citizens and cannot live in the United Kingdom with the partner of their choice. In 1995 around 60 applications from same-sex couples were submitted to the Home Office, the average length of relationship being 5 years. The numbers affected are insignificant in comparison to heterosexual applications. Explanation The effect of the amendment will be that the Secretary of State, when drafting the immigration rules, must make provisions in the rules for the admission of spouses and interdependent partners. The current rules only make provisions for spouses. Since there are no provisions for the admission of interdependent partners (such as common law spouses or homosexual partners of long standing) applications made by persons in such relationships should be refused because of the mandatory provisions in paragraph 322(1) of the current immigration Rules (HC395) which states that an application to vary leave to enter is to be refused if it is for a purpose not covered by the Rules. Applications that have been made since the introduction of the new rules by interdependent partners of British citizens and persons settled in the United Kingdom have been refused under paragraph 322(1) even though the relationships have been long standing and there have been other compelling circumstances. The official policy in relation to interdependent homosexual partners is to consider each application on its individual merits but only grant them if there are exceptional compelling compassionate circumstances (Hansard 4 May 1994 820-826). The only compelling circumstances that have so far been accepted are cases where the British partner is suffering from AIDS related illnesses and his partner is caring for him. However, it seems that even these circumstances are now not being accepted by the Home Office. In order to reflect Home Office practice and to give an element of certainty and consistency the Secretary of State should be required to make provision for interdependent partners, both heterosexual and homosexual, in the immigration rules themselves. The conditions and restrictions on the granting of leave to enter or remain on the basis of an interdependent relationship will be for the Secretary of State to decide when drafting the Rules. Benefit A major benefit of this amendment to the Home Office will be to clarify the current inconsistency in relation to interdependent partners by bringing all relationships into the Rules, rather than having separate policies which contradict the Rules. The major benefit of the amendment to British citizens and persons settled here will be equality under the Rules so that all relationships are recognised. Failure to make provision in the immigration rules for any interdependent relationship other than that of a spouse means that the immigration rules do not properly reflect British society today. In respect of homosexual relationships the courts have on a number of occasions observed that such relationships are a social fact requiring recognition in the contemporary world. The importance to the individual of forming an interdependent relationship, married or otherwise is fundamental to an individuals existence. Failure to make provision in the immigration rules for the interdependent partners of British citizens and persons settled in the United Kingdom undermines a fundamental human right namely the respect for ones private life. The benefit of this amendment will be that individuals who are in interdependent relationships with British Citizens or persons lawfully in the United Kingdom will be able to look to the immigration Rules to find out the terms and conditions in which they will or will not be granted entry or leave to remain. Practicalities The amendment only requires the Secretary of State to make provision for interdependent partnerships within the Immigration Rules. It is up to the Secretary of State to determine the requirements to be satisfied including, if appropriate, the length of the relationship. A suggested set of criteria and method of assessment is annexed (A). Other Countries Many of our European neighbours and Commonwealth partners recognised that a number of their citizens were being discriminated in immigration practice and therefore developed policies to specifically deal with this. In particular Australia which has a category of interdependent relationships which requires that the relationship is genuine, committed and that he couple are living together and closely interdependent. Since its introduction it has bought a great deal of happiness to the people who benefit and no adverse consequences have been reported. In all the countries that operate similar systems there has been no reports of abuse. An information sheet issued by the Australian Department of Ethnic affairs is annexed. ANNEX A PROPOSED NEW CATEGORY FOR IMMIGRATION RULES 1. NAME OF CATEGORY There should be created within the immigration rules a new category entitled INTERDEPENDENT PARTNER of a British citizen or other person settled in the UK. 2. REQUIREMENTS TO BE SATISFIED The requirement for the grant of leave to enter or remain as an INTERDEPENDENT PARTNER are that the applicant must: 7 Be sponsored by a British citizen or person settled in the UK and; 7 Establish he or she is in a genuine and continuing relationship of interdependency with the sponsor which involves a mutual commitment to a shared life that involves living together, or not separately apart on a permanent basis. 7 Show that together with the sponsor he or she is able to maintain themselves and any dependents adequately without recourse to public funds and 7 Show that there will be adequate accommodation for the applicant and his/her partner and any dependents without recourse to public funds. 7 Be at least 18 years of age at the time of application. 3 METHOD OF ASSESSING APPLICATION i. Application form An application form should be completed giving the answers to the following questions: 7 Personal details of applicant 7 Personal details of sponsor 7 Relationship details 7 when and where did the applicant and sponsor first meet 7 when and where did the applicant decide to begin a continuing interdependent relationship with the sponsor 7 do the sponsor and the applicant intend to maintain a lasting relationship of interdependency 7 do the applicant and the sponsor have shared assets or joint financial commitment (attach evidence e.g. joint bank accounts, property, rent receipts etc.) 7 accommodation and maintenance. Details of both applicants and sponsors current/prospective employment and details of accommodation (attach evidence e.g. wage slips, tenancy agreements, mortgage documentation, bank statements) ii. Additional documents to accompany form The applicant should provide the following with his/her application: 7 Evidence of the sponsors citizenship or settled status in the United Kingdom. 7 A letter of declaration from the sponsor confirming that the relationship is genuine and continuing, involving a mutual commitment to a shared life together that involves living together and that the relationship intends to be permanent. 7 Two supporting declarations from relatives and/or friends attesting to the genuine and continuing nature of the relationship. The declaration should indicate: a) How the declarant knows the applicant and the applicants sponsor and the frequency of contact with them b) How long the declarant has known the applicant and his/her sponsor c) Reasons for believing the relationship to be genuine and continuing. iii. Requesting further evidence If on the basis of the information given in the form and the documents accompanying the form the assessor is not satisfied as to the nature of the relationship the assessor should request further documentary evidence including the following: 7 Photographs of the couple together 7 any letters between the couple 7 any evidence of public or family recognition of the relationship (e.g. letters addressed to the couple) 7 Further statutory declarations from additional friends and relatives. iv. Interview 7 If on the basis of the evidence supplied under A and B above the officer assessing the application is still not satisfied as to whether the applicant qualifies an interview with both the applicant and the sponsor shall be conducted to establish the genuineness and stability of the relationship. 4. CONDITIONS TO BE ATTACHED TO GRANT OF LEAVE TO ENTER/REMAIN AS AN INTERDEPENDENT PARTNER 7 On being satisfied that the applicant meets the requirements of the INTERDEPENDENT PARTNER category the applicant shall be granted limited leave to enter or remain for one year. The applicant shall be free to take employment. 7 At the completion of the one year period the applicant can apply for indefinite leave to remain if he or she still satisfies all the requirements of the INTERDEPENDENT PARTNER category and each of the parties to the relationship intend to live permanently with the other as his or her INTERDEPENDENT PARTNER. ANNEX B The following countries have provisions for lesbian and gay relationships in their immigration rules. Australia Recognises same-sex relationships for immigration purposes (1991) Canada Recognises same-sex relationships for immigration purposes (1994) Denmark Registered partnerships, L&G marriage & recognition of cohabitees Finland Registered partnerships Netherlands Registered partnerships & possible full L&G marriage (1984) Norway Registered partnerships New Zealand Recognises same-sex relationships for immigration purposes (1991) Spain Partnership rights to be introduced Sweden Registered partnerships South Africa Equal rights under the constitution 1994 Mark Watson Stonewall 16 Clerkenwell Close London EC1R 0AA Tel. 0171 336 8860 Fax. 0171 336 8864 http://www.tyger.co.uk/sig/