Simplifying Immigration Law:  An Initial Consultation

Response by UKLGIG to the Border & Immigration Agency
Consultation - August 2007

Information about the UK Lesbian & Gay Immigration Group (UKLGIG)

The UK Lesbian & Gay Immigration Group (UKLGIG) is a registered charity founded in 1993, originally as the Stonewall Immigration Group (UKLGIG), when there was no provision in the immigration rules to allow foreign persons to live in the UK with their same‑sex partners and no provision for people to claim asylum when they feared persecution on the grounds of their sexual orientation.

For over 14 years the group has - through its members, staff and voluntary lawyers - been providing immigration support, information and advice to the lesbian and gay community and has, during this period, achieved enormous success.  It was instrumental in achieving the first legal recognition of any sort for gay and lesbian couples in the United Kingdom with the implementation in October 1997 of the unmarried partners concession whereby, under some circumstances, the foreign same-sex partners of UK nationals and residents were granted permission to remain in the United Kingdom based upon their relationships. Subsequently, UKLGIG has had major input into the development of the unmarried partners rules and the civil partnership rules which have been incorporated into the immigration rules.  Through its Asylum Seekers Support Project, the group uses its experience, expertise, reputation and skill in promoting human rights and eliminating discrimination through providing support to lesbians and gay men seeking asylum.
 

Why UKLGIG is responding to this consultation.

UKLGIG is aware, through its volunteer lawyers, that a number of organisations providing legal support to immigrants and asylum seekers are responding to this consultation, including the Immigration Law Practitioners Association, the Refugee Council and the Law Society.  It is aware that most of these organisations are addressing the larger issues with respect to the key principles articulated in the consultation.  In particular, UKLGIG is aware that there is general unease amongst those representing immigrants and asylum seekers that the consultation nowhere seems to state a commitment to preserving the fundamental existing substantive and procedural rights of the individuals currently affected by immigration and asylum law.  Indeed, the consultation document seems to suggest that it might be appropriate to dilute basic legal standards such as those set out in the Human Rights Act, equality legislation, European Union law and other relevant international instruments.  Paragraphs 2.8 and 2.9 of the consultation document cause particular concern in this regard

UKLGIG shares these general concerns articulated by its sister organisations.  It believes it is the clear obligation of the Home Office to ensure that any initiative undertaken to improve the effectiveness of the system, and to restore public confidence in it, must respect such fundamental rights, the protection of which should be an essential purpose of that system.

In UKLGIG’s own response to the consultation document, however, it wishes to focus on two areas about which it has specialised expertise. First of all, it is seriously concerned by the suggestion in paragraph 3.1 of the consultation document that the exercise of discretion and the development of concessions outside the rules should be discouraged.  Furthermore, it is concerned by the suggestion in paragraph 3.3 that the reliance on detailed immigration rules and operational guidance will be reduced, which, in UKLGIG’s view, could have serious effects on the transparency of the Home Office’s decision‑ making process. UKLGIG wishes to share its own experience of how important the exercise of discretion by decision‑makers and the development of concessions outside the immigration rules can be for the recognition of individual rights and, further, its experience of how detailed rules and operational guidance can improve the protection of such rights.

UKLGIG’s experience with respect to the evolution of the unmarried partners concession, the unmarried partners rules and the civil partnership rules.

In this regard, it may be helpful to provide some background information regarding how the present immigration rules relating to unmarried partners and civil partnership have come into existence and the role which UKLGIG and its members played in this regard.

UKLGIG was formed in 1993 by several gay and lesbian couples and their legal representatives.  Each of these couples had taken the decision to lodge an application with the Home Office for the foreign member in the couple to be granted further leave to remain in the United Kingdom based upon their same‑ sex relationship, notwithstanding the fact that, at that time, such relationships were totally unrecognised in British law.  Their aim was to pursue, on an entirely legal basis, applications based upon the genuineness of their relationships. Their basic argument was that, but for the fact that they did not have the right to marry, their situation was the same as that of heterosexual couples who could marry and then make an application for leave to remain in the United Kingdom on that basis.

The applications of all of these founding couples were initially refused.  As they pursued their cases through the immigration appeal process, however, individual adjudicators and the then Immigration Appeal Tribunal began in individual decisions to question the failure by the Home Office to address the fundamental issues being raised and consider the exercise of discretion in appropriate cases.  Guided by such determinations and, perhaps, the evolution of social norms which was taking place at the time, the Home Office was by the mid-1990s, in individual cases, exercising its discretion and granting some such applications, often where particularly compelling and compassionate circumstances relating to HIV status were involved.

This led to a situation where, in October 1997, the Home Office took the decision that it was appropriate to announce a general concession outside the rules with respect to unmarried partners.  This concession, initially, provided that a couple needed to demonstrate four years together in a “relationship akin to marriage” before the foreign member would be granted leave to enter or remain on the basis of their relationship.  The Home Office itself, when lobbied by UKLGIG, realised that this requirement was proving unduly difficult and unwieldy and, therefore, amended the concession in 1999 to impose a two year rather than a four year requirement.  Ultimately, one year later, the revised concession was incorporated into the immigration rules and the present unmarried partners rules continue today in the same form.

UKLGIG was subsequently heavily involved in discussions with the government regarding the drafting and implementation of the Civil Partnership Act 2004.  This legislation led ultimately to lesbian and gay couples achieving parity with heterosexual couples for immigration purposes when, in December 2005, the immigration rules were amended to include civil partnership rules according foreign lesbians and gay men in civil partnerships the right to make applications equivalent to the applications afforded heterosexual couples in the marriage rules.  It was a matter of considerable pride to UKLGIG that, some twelve years after its foundation, its campaigning in this area had achieved ultimate success.

Conclusions which can be drawn from UKLGIG’s experience

In light of UKLGIG’s experience, the organisation wishes to express strong reservations to the suggestions reflected in questions 1 and 3 of the consultation document that a “key principle” of the simplification project should be to minimize “reliance on concessions outside the normal rules” and “the need for decision-makers to exercise discretion”. UKLGIG’s own experience of the development of immigration law in its mandated area of concern has demonstrated irrefutably to the organisation the importance of concessions outside the rules and the exercise of discretion in allowing the law to develop appropriately. In this regard, it shares very much the conclusion of the Law Society in its response to the consultation document:

“Initially approaching such applications on a case by case basis, guided by judicial determinations, the Home Office itself came to recognise that individuals in these circumstances deserve protection under British immigration law. Initially, this was recognised by the exercise of Home Office discretion in individual cases. This was followed by the creation of concessions outside the rules and, ultimately, by the inclusion of categories for affected individuals within the immigration rules themselves. This incremental evolutionary process meant that standards developed in a context responsive to the nature of cases arising. It further meant that the immigration rules and instructions which ultimately followed were informed by the reality of experience. The suggestion in the consultation paper that the exercise of discretion and the development of concessions outside the rules should be curtailed is therefore a cause for concern.”

Drawing upon its own experience, UKLGIG would also wish to respond specifically to question 4 with respect to the proposed three-tier structure of primary legislation, immigration rules and operational guidance.  The consultation document suggests that immigration rules and operational guidance will become much briefer than at present.  From its own experience, UKLGIG knows that the relatively detailed nature of the immigration rules and the operational guidance developed with respect to unmarried partners and civil partners has allowed for greater transparency as to how Home Office officials have decided individual cases. Questions often arose, as the concessions and rules were developed, for example, as to how “living in a relationship akin to marriage” should be defined and, but for the detailed operational guidance provided, there would have been a total lack of clarity for those individuals making applications. The personal circumstances of applicants under the immigration rules differ enormously.  People’s lives are complex and, for better or worse, relatively complex regulations are required to accommodate a variety of circumstances in a consistent and transparent way.  It would be a seriously negative development were the Home Office to move away from the publication on its website of detailed operational guidance with respect to how decision‑ makers apply the immigration rules and if the rules themselves were to become less clearly articulated.

UKLGIG would be happy to provide the Home Office with any further assistance relating to the implementation of its simplification project.

submitted by Wesley Gryk, Wesley Gryk Solicitors
on behalf of UK Lesbian and Gay Immigration Group
August 2007

UKLGIG, P O Box 51524,London, SE1 7ZW

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