CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                              Application No. 14753/89                             by C. and L. M.                             against the United Kingdom             The European Commission of Human Rights sitting in private on 9 October 1989, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 M.    C.L. ROZAKIS                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 27 February 1989 by C. and L.M. against the United Kingdom and registered on 8 March 1989 under file No. 14753/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are Australian citizens, mother and daughter, born in 1961 and 1989 respectively.   They live in Hemel Hempstead, England.   They are represented before the Commission by Messrs.   Simon Muirhead & Burton, Solicitors, London.           The facts of the present case, as submitted by the applicants' representative, may be summarised as follows:           Since the age of 17, the first applicant has recognised herself to be a lesbian.   Her acknowledgement of her sexuality has caused estrangement from her parents in Australia.           On 22 February 1984 the first applicant entered the United Kingdom with a prior entry clearance as a working holidaymaker.   She was given leave to enter the country for six months with freedom to take employment.   The first applicant's stay was extended on similar terms until 22 February 1986 pursuant to the provisions of paragraph 30 of HC 169 which permit young Commonwealth citizens a maximum of two years stay with freedom to take employment.           By applications made on 27 January 1986 and 13 February 1986 respectively, the first applicant applied for leave to remain in permanent employment as a credit controller with her employer, W. Harold Perry Limited, and, exceptionally, for permanent residence on the basis of her lesbian relationship with a British woman (Ms.   E.) resident in the United Kingdom.   The effect of such applications was to extend the first applicant's leave to remain in the United Kingdom until 23 September 1987 under the Variation of Leave Order 1976. Thereafter she was entitled to remain in the United Kingdom pending the determination of her appeal against the decision to refuse her an extension of stay.   The application to remain as a lesbian cohabitee was rejected on 16 September 1986, this not being a status recognised by the statement of changes in Immigration Rules HC169, and the first applicant was unable to show she had any other qualifying settlement status.   The application to remain for permanent employment was rejected on 26 August 1987.           On 30 November 1987 the first applicant's appeal to an adjudicator against the Home Office's refusal to extend her leave was dismissed.   It was conceded that the decisions were in accordance with the immigration rules and therefore the appeal had to be dismissed, but it was sought to elicit from the adjudicator a recommendation that the Home Office should sympathetically reconsider her case.   The adjudicator declined to make such a recommendation.   His decision records that despite some sympathy for the first applicant in having to part from Ms E., there was no statutory power under the Immigration Act 1971 for him to make a recommendation when dismissing an appeal, and that so to recommend would be at variance with what Parliament has provided.           On 27 January 1988 the first applicant made representations to the Home Office Minister, as did her Member of Parliament, who had interviewed the couple and was satisfied that their relationship was a permanent one.   On 22 April 1988 the Minister rejected the representations on the basis that there were insufficient exceptional circumstances to warrant the exercise of his discretion to grant the first applicant leave to remain outside the provisions of the immigration rules.   On 12 July 1988, further representations were made to the Minister, including the fact that the first applicant was now pregnant by artificial insemination by a donor, and wanted to have her child in the family unit of herself and Ms. E., and that the splitting up of such a family unit would be contrary to the European Convention on Human Rights.   On 4 October 1988 the Home Office replied that it did not consider the pregnancy to be a sufficient reason to depart from the immigration rules and was of the opinion that any future deportation would not be a breach of Article 8 of the Convention.           The first applicant has been living together with Ms. E. since April 1984.   Since December 1987 they have resided in a property which they own jointly.   The couple decided to live together permanently in about 1985.   The first applicant has made only one trip to Australia from 2 September 1985 to 10 October 1985 when she collected some personal possessions and disposed of others.   The first applicant's cohabitee, Ms. E., has no eligibility to emigrate to Australia under any of the Australian Immigration Rules, and, in particular, those rules do not make provision for the admission of lesbian partners.   In any event Ms. E. would not wish to emigrate to Australia, where she has no family or connections, as she has close family in the United Kingdom, a job, a mortgaged house and has no experience of living in any other society.           The first applicant gave birth to a daughter, the second applicant, on 6 January 1989.   Since confinement and the birth of the child the first applicant is financially dependent on Ms.   E. and parenting tasks are shared between them.   In the event of her deportation to Australia with the child, the first applicant would be homeless, destitute, and have to rely on social security payments for the maintenance of herself and her child.   COMPLAINTS           It is submitted on behalf of the applicants that they are victims of a breach of Articles 8, 12 and, implicitly, 14 of the Convention.           Whilst lawfully resident in the United Kingdom the first applicant has developed a personal relationship which is not contrary to United Kingdom law.   That personal relationship can only be pursued in the United Kingdom, and the existence of the relationship would give the first applicant's partner no claim to enter Australia, even if she were willing to do so.   The first applicant has conceived and given birth to a child, the second applicant, who it is hoped will be brought up in the "de facto" family unit of the first applicant and Ms. E.   In the circumstances the decision not to give weight to the relationship and the birth of the child as a compassionate circumstance justifying the first applicant's exceptional stay in the United Kingdom is an interference with her private and family life under Article 8 para. 1 of the Convention (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138).   It is also an interference with the family life of the second applicant, and in so far as her best interests are served by growing up in a stable monogamous relationship of two persons, deportation would be a breach of principles 2 and 6 of the United Nations Declaration of the Rights of the Child 1959.           It is contended that this interference is not necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.   The first applicant will not work until the second applicant is of school age. She is the economic dependent of Ms. E., who is entitled to live and remain in the United Kingdom.   The family unit will not be a burden on public funds or seek to claim housing from public sources.   The facts of the case are sufficiently particular to make it unlikely that any exercise of discretion would undermine immigration control.           Moreover, the applicants claim that the destruction of the family unit by deportation is discrimination on the grounds of sexual preference because the Minister's policy towards heterosexual couples living together in a monogamous union is far less stringent than that for homosexual couples.   The removal of the applicant and the child also interferes with the Article 12 right of the first applicant and Ms. E. to found a family, such right not being dependent on the right to marry which they are unable to do under national law.   THE LAW   1.       The applicants have complained that the deportation of the first applicant constitutes an unjustified interference with their right to respect for private and family life ensured by Article 8 (Art. 8) of the Convention, the relevant part of which provides as follows:           "1.   Everyone has the right to respect for his private         and family life ...           2.    There shall be no interference by a public authority         with the exercise of this right except such as is in         accordance with the law and is necessary in a democratic         society in the interests of ... the economic well-being         of the country, for the prevention of disorder or crime,         ... or for the protection of the rights and freedoms of         others."           Whilst the Convention does not guarantee a right, as such, to enter or remain in a particular country, the Commission has constantly held that the exclusion of a person from a country where members of his close family reside may raise an issue under Article 8 (Art. 8) of the Convention (e.g.   No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No. 9088/80, Dec. 6.3.82, D.R. 28 p. 160 and No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205).           As regards the question whether the first applicant's relationship with her lesbian partner falls within the protection of Article 8 (Art. 8) of the Convention the Commission would refer to comparable case-law concerning a homosexual partnership:           "Despite the modern evolution of attitudes towards         homosexuality, the Commission finds that the applicants'         relationship does not fall within the scope of the right         to respect for family life ensured by Article 8 (Art. 8).         On the other hand, as the Commission and Court have         recognised in the case of Dudgeon (Eur.   Court H.R.         judgment of 22 October 1981), certain restraints on         homosexual relationships could create an interference         with an individual's right to respect for his private         life ensured by Article 8 (Art. 8).   The Commission finds that         the applicants' relationship is a matter of their private         life and the question arises whether the deportation         order, ... requiring the first applicant to leave the         United Kingdom, constituted an interference with the         applicants' right under Article 8 (Art. 8)" (No. 9369/81, Dec.         3.5.83, D.R. 32 p. 221).           Since the above-cited decision the Commission has further held, in a case concerning the lawful extradition of a foreigner, that whilst such a measure must necessarily affect private life, it "cannot in principle be regarded as an interference with the right to respect for private life protected by Article 8 (Art. 8) of the Convention" (No. 10427/83, Chandra v. the United Kingdom, Dec. 12.5.86, D.R. 47 p. 85).           In the light of this case-law, the Commission finds that a lesbian partnership involves private life, within the meaning of Article 8 (Art. 8) of the Convention.   However, although lawful deportation will have repercussions on such relationships, it cannot, in principle, be regarded as an interference with this Convention provision, given the State's right to impose immigration controls and limits.   In the present case, the Commission finds no exceptional circumstances to justify a departure from these considerations.   It, therefore, concludes that there has been no interference with the applicants' right to respect for private life ensured by Article 8 (Art. 8) of    the Convention and that this aspect of the case is manifestly    ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants have next complained of discrimination on the grounds of sexual preference, insofar as British immigration policy gives better protection to heterosexual couples than to homosexual couples.           The relevant part of Article 14 (Art. 14) of the Convention provides as follows:           "The enjoyment of the rights and freedoms set forth in         this Convention shall be secured without discrimination         on any ground such as sex, ... or other status."           The Commission refers to previous case-law concerning the better protection under housing legislation for established heterosexual couples rather than lesbian couples:           "The Commission accepts that the treatment accorded to the         applicant (a recognised lesbian) was different from the         treatment she would have received if the partners had         been of different sexes.           The Commission finds that the aim of the legislation in         question was to protect the family, a goal similar to the         protection of the right to respect for family life         guaranteed by Article 8 (Art. 8) of the Convention.   The aim itself         is clearly legitimate.   The question remains, however, of         whether it was justified to protect families but not to give         similar protection to other stable relationships.   The         Commission considers that the family (to which the         relationship of heterosexual unmarried couples living         together as husband and wife can be assimilated) merits         special protection in society and it sees no reason why         a High Contracting Party should not afford particular         assistance to families.   The Commission therefore accepts         that the difference in treatment between the applicant and         somebody in the same position whose partner had been of         the opposite sex can be objectively and reasonably justified."         (No. 11716/85, Dec. 14.5.86, D.R. 47 p. 274).           The Commission adopts the same reasoning as regards the present case: the immigration rules in question give priority and better guarantees to traditional established families, rather than other established relationships like a lesbian partnership.   The Commission finds no element of discrimination, contrary to Article 14 (Art. 14) of the Convention, in such a policy, given the special protection to be afforded to the traditional family.   Accordingly the Commission concludes that this aspect of the case is also manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Finally the applicants have complained that the proposed deportation violates Article 12 (Art. 12) of the Convention which guarantees to   "men and women of marriageable age ... the right to marry and to found   a family, according to the national law governing the exercise of this   right".           The Commission refers to the case-law of the European Court of Human Rights in the Rees case concerning transsexuals:           "In the Court's opinion, the right to marry guaranteed by         Article 12 (Art. 12) refers to the traditional marriage between         persons of opposite biological sex.   This appears also         from the wording of the Article which makes it clear that         Article 12 (Art. 12) is mainly concerned to protect         marriage as the    basis of the family. Furthermore, Article         12 (Art. 12) lays down that the exercise of this right shall         be subject to the national laws of the Contracting   States.         The limitations thereby introduced must not restrict    or         reduce the right in such a way or to such an extent that the         very essence of the right is impaired.   However, the legal         impediment in the United Kingdom on the marriage of persons         who are not of the opposite biological sex cannot be said to         have an effect of this kind.   There is accordingly no         violation in the instant case of Article 12 (Art. 12) of the         Convention." (Eur. Court H.R., Rees judgment of 17 October         1986, Series A no. 106, p. 19 paras. 49-51)           In the light of this case-law, the Commission considers that the first applicant's relationship with her lesbian cohabitee does not give rise to a right to marry and found a family within the meaning of Article 12 (Art. 12) of the Convention.   The Commission concludes, therefore, that this part of the application is incompatible ratione materiae   with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.          Secretary to the Commission          President of the Commission                     (H.C. KRÜGER)                       (C.A. NØRGAARD)