C. and L.M. v. UNITED KINGDOM



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)