Home Affairs Committee on Immigration Control
UKLGIG submission - December 2005
Who we are
1. UKLGIG is a charity
that provides assistance to lesbian and gay people with
Immigration problems, including lesbian and gay asylum
seekers. It was formerly part of the lobby group
Stonewall and was known as the Stonewall Immigration
Group. When the Conservatives were in power it lobbied
for the Immigration Rules to allow for the foreign
partners of lesbian and gay British citizens to join
them in the U.K. When the Labour Party came to power we
met with the then Minister Mike O'Brien on a number of
occasions and we were very pleased when the Labour Party
introduced the same sex unmarried partner concession in
October 1997. This subsequently became part of the
Immigration Rules in October 2000 and, with the
introduction of the Civil Partnership from 5th December
2005, there is now equality for lesbian and gay couples
within the U.K immigration system. However, there
continue to be issues that cause us concern.
Appeal Rights
2. We are deeply
concerned about the proposal to remove rights of appeal
in the Immigration and Nationality Bill that is
currently before Parliament. It is essential to have an
independent right of appeal to an Immigration Judge
because all too often Civil Servants working in IND or
entry clearance offices abroad make poor quality
decisions. Our members have suffered from this in the
past and it is only their right of appeal to an
Immigration Judge that has provided a remedy.
3. Decision makers have
to make what are often subjective decisions. For
example, whether a gay man from South Africa who states
that his intentions are to enter into a Civil
Partnership with a British Citizen genuinely has those
intentions. Or whether a lesbian from India who claims
to have lived with her British partner for two years has
in fact done so. We are aware of many successful appeals
where IND decision makers or entry clearance officers
have reached conclusions that have been overturned by
Immigration Judges.
4. We believe it is
essential that persons applying under the following
categories of the Immigration Rules have a full right of
appeal to an Immigration Judge:-
(i) Paragraph 281:
where an ECO may doubt that each of the parties
intend to live permanently with the other or that
they can adequately maintain and accommodate
themselves.
(ii) Paragraph 284: where an official in the IND may
reach a similar subjective view.
(iii) Paragraph 287: where an IND official may reach
a subjective view that despite the evidence
submitted he or she is not satisfied that the
applicant and his partner have lived together for
the preceding two years or intend to live together
permanently.
(iv) Paragaph 289A: where an IND official disputes
the applicant's claim that they have been a victim
of domestic violence during the probationary year.
(v) Paragraph 289AA: where an ECO does not accept
that the applicant genuinely intends to enter into a
marriage or civil partnership (the fiance category).
(vi) Paragraph 295A: where the ECO doubts that the
unmarried partners have lived together in a
relationship akin to marriage for 2 years or where
they claim that the evidence is not sufficient to
satisfy them.
(vii) Paragraph 295D: where an IND official takes
the same view on a variation application for an
unmarried partner.
(viii) Paragraph 295G: where an IND official is not
satisfied that the umarried partners have lived
together for the two year probationary period
despite evidence to the contrary.
5. We do hope that rights
of appeal will be retained in respect to refusals under
all of these categories of the Immigration Rules. The
Government claims that it will improve its decision
making but however much improved the decision making is
our experience is that IND officials and ECO's can be
very fixed in their views as to whether a requirement of
the Immigration Rules is met. There is also a concern
that some officials and ECO's go out of their way to
find reasons to refuse an application possibly due to a
prejudice against lesbian and gay men. This is
particularly so in some posts abroad where ECO’s are
very hard to satisfy that a relationship is genuine or
that the foreign national really does intend to live
with the British partner permanently. Prejudices abound
in respect to economic motives, age differences and the
like. We believe having an independent right to appeal
to an Immigration Judge is therefore essential.
6. We are aware that in
the Labour Party manifesto there was a commitment to
removing appeals in "non-family immigration cases". We
very much hope that applications relating to lesbian and
gay relationships including both unmarried partner and
Civil Partnership applications are considered to be
"family immigration cases" and therefore not to come
within the category of cases where the appeal rights are
to be removed. As the Bill is currently drafted,
however, we fear that appeal rights are being removed
from lesbian and gay couples.
7. We are concerned that
asylum cases which are certified under Section 94 of the
2002 Act are denied an in country right of appeal. This
section lists countries which are considered to give
rise to clearly unfounded applications for asylum.
Amongst these are countries where it is illegal to be
gay and where people are imprisoned for being gay. The
courts have held that such punishment is persecution. We
believe that no country that persecutes its lesbian or
gay population should be on this list. The most glaring
example is Jamaica – the Asylum and Immigration Tribunal
has recently held in a country guidance case that gay
men are at risk of persecution in Jamaica and the
Jamaican state does not offer any protection [DW
(Homosexual Men - Persecution - Sufficiency of
Protection) Jamaica [2005] UKAIT 00168].
8. We are concerned that
there are no guidelines issued to IND caseworkers or to
Immigration Judges concerning how to deal with sexual
orientation claims in a sensitive and non prejudicial
way. The absence of such guidelines leads to the making
of insensitive and derogatory remarks concerning sexual
practices and expressions of orientation in IND refusal
letters and determinations of Judges. We are
disappointed that our request to the AIT to draw up some
guidelines following a complaint in one particular case
(taken up by Stonewall) was rejected.
Institutional
Structures and Coordination
9. IND and UKVisas need
to consult more informally with relevant groups before
publishing new Immigration Rules. When the Immigration
Rules were recently amended to include new Civil
Partnership categories there were clear errors in the
Rules which meant that couples could not apply for visas
before the Civil Partnership Act came into force on the
5th December 2005. It had been IND’s intention that
people could apply for visas before the Act came into
force to allow people to get to the UK so that they
could enter partnerships from 5th December. They put it
on the website that applications could be made from 14th
November. However, because the new Immigration Rules
contained errors this was not possible. IND agreed to
consider applications anyway as a “concession” outside
the Rules but UKVisas said that because applications
were made under a “concession” they had to be sent from
the post abroad to the Home Office for a decision –
which would not come until after 5th December. This is a
minor matter in the scheme of things but illustrates
that if IND was willing to pass draft Rules under the
eyes of stakeholders most closely affected by the
changes, proposed errors or potential problems are more
likely to be drawn to their attention – before it is too
late.
10. We are also concerned
at the policy of IND to insist that people who are
otherwise lawfully here in the UK have to return to
their own country to apply for a visa before they can
enter into a Civil Partnership. This applies to anyone
who is in the UK on a visa or with leave to remain
granted for 6 months or less. If you have a visa granted
for more than 6 months you must have at least 3 months
left on it. This means that many visitors and students
who want to enter Civil Partnerships with their British
partners are having to fly half way around the world to
collect visas simply giving them permission to enter the
Civil Partnership. They then have to fly all the way
back to the UK and then enter their Civil Partnership.
Then they have to apply yet again to IND to extend their
stay as a Civil Partner. IND says this is all to help
prevent “sham” marriages or partnerships but in reality
it causes undue hardship and cost to many law abiding
people, not to mention damage to the ozone layer.
Detention
11. We are concerned at
the number of lesbian and gay asylum seekers who are
detained under the Fast Track scheme. Applications for
asylum based on sexual orientation are never
straightforward and we do not believe they should be
fast tracked. Our members report witnessing assaults on
other gay detainees whilst in detention on what appear
to be grounds of sexual orientation – in other words
homophobic violence. A number of our members have
alleged being the victim of what they consider to be
insensitive body searches. We believe that all
Immigration Service and Detention Centre staff should
have appropriate training to ensure that the special
needs of lesbian and gay detainees are understood.
Submitted by Matthew Davies, (former) vice-chair UKLGIG
on behalf of UK Lesbian and Gay
Immigration Group
December 2005
UKLGIG, P O Box 51524,London, SE1 7ZW
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