Select Committee on Home Affairs Written Evidence


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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