“the key facts of your client’s [sic] immigration history that we have considered are as follows: • Your client came to the UK in a temporary category (student) and therefore should never had [sic] any expectations to stay here indefinite [ly]. • Your clients continued there [sic] relationship in full knowledge that they would have to leave the UK when there visa’s [sic] expired. Whilst we appreciate the decision to refuse [CB’s] application would create some upheaval, we do not feel refusal would breach her family life as her family will be refused together. They can continue their family life in outside the UK. …... Even accepting that your clients have been in the United Kingdom since 2007, given the factors considered above and the circumstances of your clients [sic] particular case we are of the opinion that requiring them to return to India is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control.” • Your client came to the UK in a temporary category (student) and therefore should never had [sic] any expectations to stay here indefinite [ly]. • Your clients continued there [sic] relationship in full knowledge that they would have to leave the UK when there visa’s [sic] expired. Whilst we appreciate the decision to refuse [CB’s] application would create some upheaval, we do not feel refusal would breach her family life as her family will be refused together. They can continue their family life in outside the UK. …... Even accepting that your clients have been in the United Kingdom since 2007, given the factors considered above and the circumstances of your clients [sic] particular case we are of the opinion that requiring them to return to India is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control.”
“It is not, per se, an infringement of article 8 to sanction the removal of the same sex couple in a civil partnership under English law to a jurisdiction which does not recognise civil partnerships (cf EM (Lebanon)). I certainly am prepared to accept that article 8 is capable of being engaged in this present context. Nevertheless I can see no error of law here in the assessment of proportionality; and the Upper Tribunal judge was justified in so concluding on that aspect of the case.”
“2. … An important feature of the case which seems to me to be potentially highly relevant is that since the determination of the First Tier Tribunal and Upper Tier Tribunal decisions, and indeed even since the order made by the Right Honourable Davis LJ refusing permission on the paper application, the Supreme Court in India has now overturned a ruling of the Delhi High Court which had found the law which made homosexual activity criminal in India was unconstitutional. The Supreme Court have said this it is a constitutional law, and that plainly changes the position, potentially, for this couple on return. 3. In addition I am told that there has been no case which has considered the position of lesbians who have entered into a civil partnership and the court will have the opportunity to look at that wider issue.”
“377. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
“We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private, as violative of articles 14, 21 and 15 of the Constitution. The provisions of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By “adult” we mean everyone who is 18 years and above. ……This clarification will hold, till of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion.”
“15. I have been presented with a wealth of evidence which I have considered which paints a very poor picture for lesbians in India. Indeed it suggests that they are hardly visible at all other than in more enlightened urban areas and that the reality for lesbians in India is a lifetime of hiding their real sexuality from their families and public. However, without a doubt it paints a picture of an improving situation, one where there is beginning to be some more openness and admission that lesbians even exist. I do accept however, that the lifestyle of the appellants in the United Kingdom would be far more open than it would be in India and that they are more likely to be able to live the kind of lifestyle that they want here than they would there. That does not necessarily mean that their appeal must succeed. 16. I have considered the decision in the case of EM (Lebanon vs SSHD) (2008) UKLH64 because this is relevant in this case where the couple will be removed together. Lord Bingham set out the test so that a flagrant breach would be required such as would completely deny or nullify the right in the destination country “serious discriminatory interference when the right would be insufficient”. [sic] 17. The truth is the evidence suggests that, wherever they live, these people will live as a couple. I have not seen any evidence that Indian society would in any way be able to prevent this. Removing them to India would not stop them living together and in that respect will not destroy their family life. 18. The appellants say they are a couple and that both are determined to remain so. One says that she would not succumb to pressure from their family to marry a man and the other says that she would. Frankly I do not accept that argument. They are both mature intelligent women and are [sic] both long since left home having lived in Delhi long before they came to the United Kingdom. Pressure they [sic] may be but I do not believe that they would succumb to it. 19. The appellants’ argument is that, as a same sex couple, they have rights which they would be denied in India but which they can exercise in the United Kingdom. They argue that they have a right to adopt a child/children, that they have a right to seek IVF treatment, that they have a right to be considered next of kin, have joint banking and own property together. I do not accept that these rights exist and certainly not that they were ever intended to be protected by the Convention. 20. Whatever they say, they have entered into a civil partnership and that will continue however long they want it to. Discriminatory views will not change that as a fact. I can see no reason and have not been presented with a shred of evidence to confirm that they would not be allowed to have a bank account in their joint names nor to have property in their joint names. Indian law is based very much on English law. As to their next of kin status I consider it to be completely irrelevant. There is no reason why they could not make mutual wills to deal with that issue. 21. I do not accept that they have a right to adopt or seek IVF any more than any other couple. Adoption is about the best interests or rights of children not childless couples. There is no evidence of the inability to own property jointly either. 22. I accept that they have a far more open relationship here than they would in certain areas of India but they can, after all, return to Delhi which is where they came from. Delhi is of course the area where the penal codes were altered nearly two years ago to make homosexuality no longer a crime. It is also, according to the objective evidence, somewhere where they are more likely to be accepted. I accept there may be discrimination in some form but that does not mean to say that they will not be able to continue their family life together. I do not believe their removal would have such an effect on their family life as to even engage article 8. Their private life together would continue and although they have obviously made some friends here there is why they could not continue to keep in touch with them in the usual ways. Their private life seems to be totally consisting of work colleagues and friends that they have made here whilst they were students. They have completed their studies and would expect to return and all their friends would expect them to be returning at the end of their studies. There is no reason why they can’t keep in touch as I have already said. 23. I believe that questions 3 and 4 can be easily answered in favour of the Respondent. The interference is clearly in accordance with the law and necessary in the interests of the economic well-being of the country as otherwise all students would simply remain here at the end of their time. Although I do not consider it necessary I have also considered the question of proportionality. 24. Is it reasonable to expect these two to carry on family life such as it is in India. I believe it is. Attitudes in India will only ever change if there are young couples such as these two who are prepared to effectively come out and show the Indian people how honourable and beautiful a same sex relationship is. They came to the United Kingdom to further their studies and have been fortunate in being able to complete that. They have achieved what appears to be their goal in declaring their love for each other through a legal civil partnership. As I have already stated that will always be the case whatever they attitudes they face in India. So far as most if not all of the other things that they fear is concerned there are ways around them which they as educated and modern women should be able to deal with. I consider their removal to be totally proportionate.”
“56. While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”
“It is now established beyond doubt that the relationship between a same-sex couple constitutes ‘family life’ for the purposes of article 8.” vi) Although trite law, it was important to recognise that the standard of proof as to whether a party’s article 8 rights were to be breached was the finding of ‘substantial grounds’; i.e. a lower standard than the balance of probabilities, but one indicating grounds which are “compelling’ in the form of something approaching international consensus; see Kapri v HM Advocate [2014] HCJAC 33; [2015] JC 30, at paragraph 124. vii) In July 2015, the European Court of Human Rights (“the ECtHR”) in Oliari and Others v Italy (Application nos. 18766/11 and 36030/11) addressed the factual and legal developments since the landmark judgment in Shalk and Kopf. At paragraph 178, the court held that the tipping point had been reached where the majority of Council of Europe nations (24 out of 47) legislated in favour of legal recognition of same-sex couples, noting the “continual international movement towards legal recognition, to which the Court cannot but attach some importance”
“I do not believe their removal would have such an effect on their family life as to even engage article 8. Their private life together would continue and although they have obviously made some friends here there is no reason why they could not continue to keep in touch with them in the usual ways.” xi) It was likewise surprising that the Upper Tribunal found at paragraph 41 of their determination that: “[O]ne can understand why in that context the judge found that article 8 was not even engaged.”
“The truth is the evidence suggests that, wherever they live, these people will live as a couple. I have not seen any evidence that Indian society would in any way be able to prevent this. Removing them to India would not stop them living together and in that respect will not destroy their family life.” demonstrated a failure to engage with the appellants’ actual case, namely that in India they will not be afforded any legal recognition or protection of their relationship. c) The above finding was also arguably contrary to other findings made by the FTT, in particular at paragraph 15 of its determination (as to which see above) where it found that the country background evidence: “paints a very poor picture for lesbians in India. Indeed it suggests that they are hardly visible at all other than in more enlightened urban areas and that the reality for lesbians in India is a lifetime of hiding their real sexuality from their families and public. However, without a doubt it paints a picture of an improving situation, one where there is beginning to be some more openness and admission that lesbians even exist. I do accept however that the lifestyle of the appellants in the United Kingdom would be far more open than it would be in India and that they are more likely to be able to live the kind of lifestyle that they would want here than they would there. That does not necessarily mean that their appeal must succeed.” d) The appellants criticised other findings in the judgment in particular in relation to paragraph 19 and the FTT’s conclusion that: “The appellants’ argument is that, as a same sex couple, they have rights which they would be denied in India but which they can exercise in the United Kingdom. They argue that they have a right to adopt a child/children, they have a right to seek IVF treatment, they have a right to be considered next of kin, have joint banking and own property together. I do not accept that these rights exist and certainly not that they were ever intended to be protected by the Convention.” e) Likewise they criticised the FTT's failure to appreciate that, as a lesbian, neither appellant would under Indian law be entitled to apply to adopt a child, to have IVF in order to conceive, to have next of kin rights if the other appellant were hospitalised or lost mental capacity. f) At paragraph 15 of the FTT determination, the highest the judge placed the country background evidence was: “[T]here is beginning to be some more openness and admission that lesbians even exist.”
“So far as most if not all of the other things that they fear is concerned there are ways around them which they as educated and modern women should be able to deal with.”
“It is reasonable to expect these two to carry on family life such as it is in India. I believe it is. Attitudes in India will only ever change if there are young couples such as these who are prepared to effectively come out and show the Indian people how honourable and beautiful a same sex relationship is.”
“41. In his opinion in the cases of Ullah and Do, my noble and learned friend, Lord Bingham of Cornhill, draws a distinction between 'domestic cases' and 'foreign cases'. He defines the former as cases 'where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory' (paragraph 7). He defines the latter as cases 'in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory' (paragraph 9). Another way of putting this distinction is that in domestic cases the contracting state is directly responsible, because of its own act or omission, for the breach of Convention rights. In foreign cases, the contracting state is not directly responsible: its responsibility is engaged because of the real risk that its conduct in expelling the person will lead to a gross invasion of his most fundamental human rights. Ullah and Do were foreign cases which failed to meet that test. ” 42. The distinction is vital to the present case. In a domestic case, the state must always act in a way which is compatible with the Convention rights. There is no threshold test related to the seriousness of the violation or the importance of the right involved. Foreign cases, on the other hand, represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control. The Strasbourg court clearly regards them as exceptional. It has retained the flexibility to consider violations of articles other than articles 2 and 3 but it has not so far encountered another case which was sufficiently serious to justify imposing upon the contracting state the obligation to retain or make alternative provision for a person who would otherwise have no right to remain within its territory. For the same reason, the Strasbourg court has not yet explored the test for imposing this obligation in any detail. But there clearly is some additional threshold test indicating the enormity of the violation to which the person is likely to be exposed if returned. Ullah and Do on their facts came nowhere near meeting that test. It is, for the reasons given both by Lord Bingham and Lord Steyn, extremely unlikely that a failure to respect religious freedom which fell short of persecution within the meaning of the Refugee Convention would do so. 43. This case, however, is concerned with article 8. In that context, Lord Bingham also refers to a third or hybrid category. Here 'the removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B' (paragraph 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private and family life, home and correspondence, which is protected by article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion. …… 65. For those reasons, I would hold that the Secretary of State was entitled to reach the conclusion he did on the material before him and would therefore allow this appeal. I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go. In my view, those obligations are not such as to require the United Kingdom to refrain from returning Mr Razgar to Germany in accordance with the Dublin Convention.”
“I do regard it as important, however, that member states should not attempt to impose Convention standards on other countries by decisions which have the effect of requiring adherence to those standards in those countries.”
“… removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the removing country than in that to which the applicant is to be removed. This was made plain in D v United Kingdom(1997) 24 EHRR 423 , paragraph 54. Although the decision in Henao is directed to article 3, I have no doubt that the Court would adopt the same approach to an application based on article 8. It would indeed frustrate the proper and necessary object of immigration control in the more advanced member states of the Council of Europe if illegal entrants requiring medical treatment could not, save in exceptional cases, be removed to the less developed countries of the world where comparable medical facilities were not available. I do not understand the Court of Appeal to have proposed a test based on relative standards of treatment … If there is any doubt on this point, it should be dispelled. The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits.”
“7. It seems to me that the Strasbourg court’s jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin. There is a close analogy between this case and N v United Kingdom (Application No 26565/05) (unreported)27 May 2008 which followed the decision of this House in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening)[2005] 2 AC 296 . ... 10. That was a case about article 3, not one of the qualified Convention rights. Yet even in such a case, where there was a very real risk that the harm that would result from the applicant’s expulsion to the inferior system of health care in her country of origin would reach the severity of treatment prescribed by that article, the court held that, other than in very exceptional cases, there was no obligation under the Convention to allow her to remain here. This was because it was not the intention of the Convention to provide protection against disparities in social and economic rights. To hold otherwise, even in an article 3 case, would place too great a burden on the Contracting States. Similar observations about the limits that must be set on practical grounds to the qualified obligations that they have undertaken in the area of civil and political rights are to be found in F v United Kingdom (Application No 17341/03) (unreported)22 June 2004 and Z and T v United Kingdom (Application No 27034/05) (unreported)28 February 2006 . These decisions were not available to the House when it was considering the cases of Ullah[2004] 2 AC 323 and Razgar[2004] 2 AC 368 , the judgments in which were delivered on17 June 2004 . 11. In F v United Kingdom the applicant was an Iranian citizen who had claimed asylum here on the basis that he feared persecution as a homosexual. His application for asylum was rejected. But he claimed that there would be a breach of article 8 if he were to be removed to Iran because a law in that country prohibited adult consensual homosexual activity. His application was declared inadmissible by the Strasbourg court. At p 12 of its decision the court observed that its case law had found responsibility attaching to Contracting States in respect of expelling persons who were at risk of treatment contrary to articles 2 and 3 of the Convention. It said that this was based on the fundamental importance of these provisions, whose guarantees it was imperative to render effective in practice: Soering v United Kingdom(1989) 11 EHRR 439 , para 88. But it went on to say this: ‘Such compelling considerations do not automatically apply under the other provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention. …… 14. As this case shows, the principle that men and women have equal rights is not universally recognised. Lebanon is by no means the only state which has declined to subscribe to article 16(d) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women of18 December 1979 which declares that States Parties shall ensure, on a basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in all matters relating to their children and that in all cases the interests of the children shall be paramount. For the time being that declaration remains in most, if not all, Islamic states at best an aspiration, not a reality. As the court said in Soering, para 91, there is no question of adjudicating on or establishing the responsibility of the receiving state, whether under general international law, under the Convention or otherwise. Everything depends on the extent to which responsibility can be placed on the Contracting States. But they did not undertake to guarantee to men and women throughout the world the enjoyment without discrimination of the rights set out in the Convention or in any other international human rights instrument. Nor did they undertake to alleviate religious and cultural differences between their own laws and the family law of an alien's country of origin, however extreme their effects might seem to be on a family relationship. 15. The guidance that is to be found in these decisions indicates that the Strasbourg court would be likely to hold that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a Contracting State in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state. The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere. So the inevitable result under Shari'a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.’”
“185. In conclusion, in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.”
“174. In view of the above considerations, the Court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection - in the form of core rights relevant to a couple in a stable and committed relationship - without unnecessary hindrance. Further, the Court has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce (see Vallianatos, cited above, paragraph 81). This recognition would further bring a sense of legitimacy to same-sex couples. 175. The Court reiterates that in assessing a State’s positive obligations regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Having identified above the individuals’ interests at play, the Court must proceed to weigh them against the community interests. 176. Nevertheless, in this connection the Court notes that the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole. They however considered that “time was necessarily required to achieve a gradual maturation of a common view of the national community on the recognition of this new form of family”
“It is a grievance well short of the standard explained in cases such as EM (Lebanon) and SS (Malaysia), that of a flagrant breach of a core human right.”