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Extract from SIG letter to Peter Hain in January 2002

The Stonewall Immigration Group (now the UK Lesbian & Gay Immigration Group) represents lesbians and gay men with UK immigration problems. We campaigned for the introduction of the Unmarried Partners Rule which the Government introduced initially as a concession and since 2000 as an Immigration Rule [ 295A-O of HC395]. British and settled persons can now be joined in the UK by their same sex partners once the relationship has subsisted for over 2 years. This has made a great deal of difference to the lives of bi-national same sex couples and we greatly appreciate the introduction of the Rule by the Government.

However, these couples cannot move freely within the European Union because their relationship is only recognised for immigration purposes by the UK. We are therefore writing to you to seek the support of the Government for amendments to the proposed Directive on freedom of movement.

Existing EU free movement law discriminates against lesbian, gay, bisexual and transgender partners and their children because the right to be joined in another EU state by one's family is dependent on being married to the partner. Whilst the proposed Directive states that "Member States shall give effect to the provisions of this Directive without discrimination on grounds of …… sexual orientation", this statement of principle is not reflected in the substance of the proposed Directive. Indeed, as it stands, the Directive would perpetuate discrimination against EU citizens in a same-sex or non-marital relationship.

As the Directive is currently drafted a British person who is, for example, offered a job in Italy, will not be able to be accompanied by his or her non EU partner even though the partner has been granted limited or indefinite leave to remain under the UK’s Unmarried Partners Rule. This is because Italy does not have equivalent laws to the UK. Most people would not wish to leave their partner behind and the British partner is therfore suffering an interference with their freedom of movement.

We attach a position paper by ILGA-Europe proposing a number of amendments which would eliminate this discrimination. The most important of these would expand the definition of "Family member" in Article 2 (2) to include registered partners, unmarried partners, and their children. A further amendment would clarify the definition of “spouse” to ensure that, where national legislation allows for same-sex marriages, such marriages would also be recognised for the purposes of this Directive.

These proposals are designed to ensure that lesbian, gay, bisexual and transgender persons enjoy the same fundamental right to freedom of movement, including the right to be joined by family members, as all other citizens. The denial of these rights is not some abstract or academic matter: the consequent separation of families is a source of real hardship to the individuals concerned, and a clear impediment to the free movement of citizens.

We ask that the government take up these proposals and put them forward to other Member States in the Council negotiations on this Directive.

We would welcome a meeting with you or your officials to discuss these proposals, and provide any further explanation which you may need.

Yours sincerely,

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Position paper on the proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

Revised version: January 2002

Explanatory introduction

The right to freedom of movement within the European Union is one of the cornerstones of European citizenship. It is protected both in the founding EC Treaty and in the Charter of Fundamental Rights. The right to free movement includes the right to be joined by the members of your family. As the Commission makes clear in its explanatory memorandum to this proposal, this flows from:

‘the right to preserve family unity, which is intrinsically connected with the right to the protection of family life, a fundamental right forming part of the common constitutional traditions of the Member States, which are protected by Community law and incorporated in the Charter on Fundamental Rights of the European Union’.

Free movement law is relevant where a European citizen (i.e. a person holding nationality of one of the 15 Member States) wishes to move to another EU state. Problems can arise for lesbian, gay, bisexual and transgender (LGBT) people if they want to bring their partner and any children with them, both where the family members are EU nationals and where they are non-EU nationals. To date, free movement law has discriminated against LGBT families because the right to be joined in another EU state by one’s family is dependent on being married to the partner.

As a consequence, a serious obstacle to the movement of LGBT persons is the continuing refusal of many Member States to open marriage to same-sex couples or to create alternative legal frameworks for the recognition of diverse family relationships. ILGA-Europe has consistently advocated full equality before the law for LGBT persons, including the right to marry and to found a family. At the same time, we do not believe that the fundamental right to family life should be made dependent on individuals choosing to enter into either marriage or another form of legally recognised partnership. Law needs to reflect and respect the diversity of family relationships that now exist.

Since 1994, the European Parliament has called for an end to ‘the barring of lesbians and homosexual couples from marriage or from an equivalent legal framework’. The right of all persons, irrespective of gender identity or sexual orientation, to marry and found a family is now recognised through Articles 9 and 21(1) of the Charter of Fundamental Rights. The right of same-sex couples to marry has been recognised in the Netherlands. Registered partnership laws extending rights similar to those attached to marriage now also exist in Denmark, Sweden and Finland. Laws in France, Germany and Portugal provide for the legal recognition of non-marital partnerships, albeit with considerably less rights than those enjoyed by married partners.

The lack of adoption and/or recognition of such laws by all Member States creates obstacles to freedom of movement. Many of these new legal frameworks are not recognised outside their country of origin. Consequently, families enjoying rights under these laws face a loss of rights and legal recognition by moving within the European Union. This is an obvious and substantial deterrent to the mobility of these families, affecting considerable numbers of persons.

Transgender people can experience a variety of obstacles to exercising their free movement rights including the following:

· Individuals can experience problems travelling where it is not possible to correct the gender assigned at birth on documents such as passports or identity cards;

· If national law does not fully recognise the change in gender, then heterosexual transgender persons may find themselves precluded from marriage, because the law would regard it as a same-sex marriage;

· Even where marriage is possible and legally recognised in the state of origin, it may not be recognised in the state to which the couple is moving;

· The non-recognition of partnerships can give rise to further difficulties in respect of the right to be joined by children where the individual is a non-biological co-parent;

· National laws can require individuals to divorce an existing spouse during gender reassignment. Although the partners and any children may still regard themselves as a family unit, in this instance, legal recognition of the family relationship is removed.

From the outset of this proposal, the Commission acknowledges the special link it has with the fundamental rights of EU citizens. Free movement is one of the clearest examples to individuals of a right they enjoy as a direct result of European integration. Given the fundamental nature of this right in the EU legal order, it is essential that it is enjoyed without any discrimination whatsoever. This flows from Article 21 of the EU Charter of Fundamental Rights, Article 13 of the EC Treaty and Article 4 of the legislative proposal, which states that ‘Member States shall give effect to the provisions of this Directive without discrimination on grounds of … sexual orientation’. Whilst ILGA-Europe welcomes this statement of principle, it is very disappointed not to find this reflected in the substance of the proposed Directive. As it stands, the Directive would perpetuate the discrimination faced by EU citizens in a same-sex or non-marital relationship.

In its decision in P v S and Cornwall County Council, the Court of Justice clarified that discrimination on the ground that an individual ‘intends to undergo, or has undergone, gender reassignment’ is discrimination based ‘essentially, if not exclusively, on the sex of the person concerned’. Article 4 of the proposal includes a ban on any ‘sex’ discrimination in the implementation of the Directive. Whilst the approach of the Court of Justice implies that this includes discrimination against transgendered persons, we believe this interpretation is not manifestly obvious to both national law-makers and EU citizens. In order to clarify the scope of the law, and hence produce greater legal certainty, we propose that protection against discrimination related to ‘gender identity’ should be explicitly forbidden (in the implementation of the Directive). Therefore, we propose the following amendment:

‘Member States shall give effect to the provisions of this Directive without discrimination on grounds of sex, gender identity, ... sexual orientation.’

Article 2(2) defines ‘family member’ for the purposes of this Directive. Sub-paragraph (a) states that this includes ‘the spouse’. We are concerned that, due to recent case-law of the Court of Justice, same-sex marriages might not be recognised for the purposes of EU law. In D and Sweden v Council, the Court found that the concept of being ‘married’ for the purposes of the EU Staff Regulations has a European definition, not dependent on national law provisions. The Court stated its view that ‘the term marriage means a union between two persons of the opposite sex’. Therefore, to allow for the non-discriminatory operation of the Directive, we propose the following amendment:

‘the spouse, according to the relevant national legislation,’

As already stated, many EU Member States have already chosen to create some form of legal recognition for non-marital partnerships. Whilst these laws differ in their scope and effects, the registration of the partnership is a core, shared element. It is an obvious and manifest barrier to the exercise of free movement rights if individuals already in a registered partnership cannot move to another EU state with their legally recognised partner. We believe that all EU states should recognise registered partnerships for the purposes of free movement law, regardless of the situation in their domestic laws. Mutual recognition of diverse national regulatory standards is a well-established principle in all aspects of EU free movement law, and one that is endorsed in the Tampere conclusions. Therefore, we propose to add a new sub-paragraph to Article 2(2) to address this situation:

Article 2(2)(b) currently proposes rights for certain unmarried partners. It will include in the definition of family member:

‘the unmarried partner, if the legislation of the host Member State treats unmarried couples as equivalent to married couples and in accordance with the conditions laid down in any such legislation’.

There are a number of difficulties with this provision. First, it is not clear in which circumstances it will apply. Logically, those states such as Denmark, the Netherlands and Sweden, where registered partnership laws grant unmarried couples most of the rights of marriage, should be regarded as states where unmarried couples are treated as equivalent to married couples. However, it is not certain that this will be the case where national law provides some rights to unmarried couples, but this remains quite distinct from marriage - for example, in France and Germany. A further complication occurs where laws in a particular region accord rights to unmarried couples (for example, the Stable Unions law in Catalonia) but this is not available nationally.

Second, under the current approach, a new form of nationality discrimination will be introduced between EU citizens. This is in breach of Article 12 of the EC Treaty and Article 21(2) of the Charter of Fundamental Rights. For example, the proposal would appear to allow an Italian gay man to move to Sweden and to be joined there by his unmarried male partner, whether this partner is another EU national or a non-EU national. In contrast, a Swedish gay man will not enjoy the right to move to Italy and to be joined there by his unmarried male partner (irrespective of the nationality of that partner).

This approach is even more paradoxical when one considers that (following the example above) the Italian man gains legal recognition of his partner by moving to Sweden, whereas the Swedish gay man, who may be already in a legally recognised registered partnership in Sweden, will lose all legal recognition of his partner by moving to Italy. Therefore, a real barrier to free movement exists for LGBT individuals who want to move with their partners from states which already provide legal recognition of unmarried partners in domestic law, to those EU states which still do not provide any legal recognition comparable to the rights enjoyed by married partners.

There is no need to make the free movement rights of unmarried partners dependent on whether national law in the host state does or does not provide for a form of legally recognised non-marital partnership. This is clear from the situation in the UK where no registered partnership law exists, but immigration rights for same-sex couples have been extended since 1997. Similar provisions can also be found in Belgium. The only long-term solution is to provide free movement rights for any unmarried partners in a durable relationship. Any assessment by national authorities as to whether such a relationship exists between two individuals will clearly have to be based on the information available in that particular case. For that reason, we believe it would be inappropriate to be overly prescriptive in determining what constitutes a durable relationship (for example, by requiring that couples must have lived together for an uninterrupted period of time). In keeping with the principle of subsidiarity, we believe that the Directive should provide a non-exhaustive list of factors that national authorities should take into account in assessing applications for admission under this provision. Therefore, we propose the following amendment:

‘the unmarried partner, whether of the same-sex or opposite-sex, with whom the applicant has a durable relationship [text deleted]. In assessing whether a durable relationship exists, Member States shall consider as evidence of the relationship factors such as the length of the relationship, previous cohabitation, shared parental responsibilities and any other means of proof.’

Paragraphs (c) and (d) provide further rights to be joined by direct descendants or relatives in the ascending line of the ‘spouse or unmarried partner’. Given our recommendation for an explicit reference to registered partners, these parts require the following amendments:

‘the direct descendants and those of the spouse or registered partner or unmarried partner as defined in point (b)’

‘the direct relatives in the ascending line and those of the spouse or registered partner or unmarried partner as defined in point (b)’

Moreover, we believe it is essential that the interests of children are given priority in decisions affecting family unity. Children should not face separation from any of their parents simply because of the absence of a biological link or a failure of the law to recognise the reality of a parental relationship. Support for this approach is found in the UN Convention on the Rights of the Child. Therefore, we propose the following addition:

Article 13 of the Directive protects the residence rights of family members in the event of divorce or annulment of marriage. However, given that the Directive also applies to non-marital partnerships, Article 13 also needs to extend equivalent protection to family members in the event of dissolution of the partnership. In the case of registered partnerships, such dissolution is already provided for under the relevant domestic law. The situation is more complex where someone is admitted as a family member on the basis of an unmarried partnership. As proposed above, this admission will be founded on the existence of a durable relationship. Therefore, the logical approach is to refer here to the cessation of the durable relationship. As it will be for Member States to establish evidential systems to certify the existence of a durable relationship, these could also be applied to confirming the end of this relationship.

(1) Without prejudice to the second subparagraph, divorce or annulment of marriage or dissolution of registered partnership or cessation of an unmarried partnership shall not affect the right of residence of an EU citizen's family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions provided for in Article 7(1)(a), (b), (c) or (d).

(2) Without prejudice to the second subparagraph, divorce or annulment of marriage or dissolution of registered partnership or cessation of an unmarried partnership shall not entail the loss of the right of residence of an EU citizen's family members who are not nationals of a Member State where:

(a) prior to the initiation of the divorce or annulment proceedings or dissolution of registered partnership or cessation of an unmarried partnership, the marriage or registered partnership or unmarried partnership has lasted at least five years, including one year in the host Member State; or

(b) by agreement between the spouses or registered partners or unmarried partners or by court order, the spouse or registered partner or unmarried partner, not being an EU national, has custody of the EU citizen’s children …’

Under Article 14 of the Directive, permanent resident status is acquired after four years residence in the host state. However, Article 15 provides certain derogations where permanent resident status can be acquired prior to the four year period. Two of the sub-paragraphs in Article 15 deal with situations where the spouse lost their nationality of origin following marriage to the worker (of another nationality). Whilst this would not normally affect unmarried partnerships, there could be situations where registered partners change nationality subsequent to registration of the partnership. Therefore, it seems appropriate to add a reference to this.

(3) The conditions as to length of residence and employment laid down in paragraph 1(a) and the condition as to length of residence laid down in paragraph 1(b) shall not apply if the worker's spouse or registered partner or unmarried partner is a national of the Member State concerned or has lost the nationality of that State by marriage or by entering a registered partnership with that worker. [...]

(4) … (c) the surviving spouse or registered partner lost the nationality of that State following marriage to the worker or by entering a registered partnership with that worker

In monitoring and evaluating the free movement law proposals of the European Union institutions, ILGA-Europe aims to ensure that new measures reflect the full diversity of families and operate in a non-discriminatory fashion. Specifically, we believe that EU law must:

(a) remove barriers to LGBT persons exercising their right to move and reside freely within the Union as individuals;

(b) remove barriers to LGBT families in the exercise of free movement rights, in particular, by ending the restriction of rights to certain forms of legally recognised families;

(c) prohibit any discrimination in the interpretation and implementation of rules and policies on free movement, both at EU and national level.

The proposal for a new Directive on Free Movement Rights for EU Citizens and their Family Members aims to replace a variety of existing laws that regulate the right to move and reside in another EU state with one single Directive. The Directive states the conditions on which EU citizens can move to another EU state and reside there. It aims to simplify and reduce the bureaucratic procedures connected with living and/or working in another EU state, and to introduce a ‘permanent resident’ status for individuals who have lived in another EU state for four years. Finally, the Directive provides strict rules on the limited circumstances where an EU citizen or their family members can be refused entry to another EU state, or removed from that state.

This proposal is important for LGBT individuals because it will define who are the recognised family members of an EU citizen who moves to another EU state. Moreover, by virtue of an earlier proposed law, this definition of family members will also be applied to EU citizens who remain in their state of nationality, but who wish to be joined in that state by a partner who is not a national of the European Union (for example, a Spanish lesbian living in Madrid who has a same-sex partner from Mexico and who wants her Mexican partner to be able to live with her in Spain).

It should be noted that this Directive only concerns the rights of EU citizens and their family members; it does not apply to couples where both partners are non-EU nationals. Moreover, unlike other immigration law instruments, this Directive (if adopted) will apply to all EU Member States. Importantly, it will be adopted by the ‘co-decision’ procedure. This is a complex legislative procedure, but essentially it gives the European Parliament joint decision-making powers with the Council. If the European Parliament rejects the Directive, it cannot be adopted. Therefore, the Parliament is in a strong position to negotiate with the Council.

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