38. Memorandum submitted by UK Lesbian
and Gay Immigration Group
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 UK. 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 5 December
2005, there is now equality for lesbian and gay couples within
the UK 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 CO
-ORDINATION
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 5 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 5 December. They put
it on the website that applications could be made from 14 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 5 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. One more serious error in the new Rules means
that people who get visas to come to the UK to enter a civil partnership
will have to return home again and apply for another visa to come
back and remain in the UK with their British civil partner (something
that fiance«s who then marry do not have to do). IND accepts
that this is a pure drafting error and will be corrected in the
next set of Rules—but these things should not happen.
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 six months or less. If you have a visa granted for more than
six months you must have at least three 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, or return back to their home country yet again
if the error in the Rules is not removed (see paragraph 9 above).
IND says this is all to help prevent "sham" marriages
from visitors to the UK. Heterosexual couples can get married
in every country of the world and then apply for a spouse visa—but
for lesbian and gay couples the only place they can enter a Civil
Partnership will be in the UK. The requirement to leave and apply
for visas to return, particularly if they are from homophobic
countries, causes undue hardship and considerable 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.
Matthew Davis
Vice-Chair
2 December 2005
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