February is LGBT+ History Month and this seems a good opportunity to commit to writing a little bit of the history of the creation and development of the grassroots movement which led, on 10 October 1997, to the enactment by the newly elected Labour Government of the unmarried partners concession a little more than 22 years ago. In doing so I hope to make a small contribution to the written record of the recognition of same-sex relationship legal rights in the field of immigration law in the 1990s.
It also may be the case that this narrative will inform some of the younger generation as to what enormous changes have occurred with respect to the acceptance of LGBT+ rights in a relatively short period of time and, perhaps, signal a warning that things were very different not so long ago and that no one should take for granted the positive changes which have occurred.
Acknowledgements: I owe a special note of thanks to two individuals in particular for their assistance in the preparation of this piece:-
1. My former colleague Charles Bishop, now the Legal and Parliamentary Officer at the Immigration Law Practitioners’ Association (ILPA) and soon to become a pupil barrister at Landmark Chambers, who first suggested that I write such an article and who provided helpful comments on a near complete first draft which I wrote two years ago; and
2. Ian Morton, a fellow volunteer at the UK Lesbian and Gay Immigration Group (UKLGIG) for more years than either of us would probably like to own up to, who contacted me earlier this year and urged me to finish the article as well as himself undertaking the task of filling in some of the bits missing from my first draft, drawing upon his own knowledge and research about the group’s history as well as from historical information included on the UKLGIG website which Ian plays a key role in maintaining. This article would not have been completed for publication this year but for Ian’s efforts and I am very grateful to him for his research, his editorial and drafting input and most of all for his encouragement and patience.
A big thanks to both of you, Charles and Ian.
I should make clear, however, that, to the extent any important omissions or errors may be detected, sole responsibility for these lies with myself
What was the unmarried partners concession announced on 10 October 1997?
The unmarried partners concession provided that applications could be made for further leave to remain in the United Kingdom by the foreign partner of a British-based partner, where the couple concerned were a same-sex couple or a straight couple facing an impediment to marriage on the condition that the couple concerned could demonstrate four years of cohabitation. While the concession was hardly perfect, it represented – so far as I have been able to ascertain – the very first time ever in the British legal system that same-sex couples were legally recognised so, all in all, an important step.
In announcing the concession, the then Immigration Minister Mike O’Brien QC, serving in Tony Blair’s newly elected Labour Government, who had been instrumental and enormously supportive in effectuating the change, stated that the previous practice was considered ‘unsustainable’ and ‘may have breached Human Rights law’ although he also stressed that the concession had been framed to ensure the preservation of the ‘special position of marriage’. (See later in the text for more information about the pivotal role played by Mike O’Brien in bringing about this change.)
What were the first steps towards winning such an historic concession?
As with so many movements for social change, this one was created by very courageous individuals who felt that they were being treated like second class-citizens and decided that they were going to stand up and demand the equal rights to which they felt entitled. My first introduction to such brave – not to say foolhardy – individuals began innocently enough with an invitation to lunch on 3 May 1992 by two good friends living in Belsize Park, Bill, a British national who was then playing a lead organising role in maintaining the ‘buddy system’ for people affected by HIV and AIDS at the Terrence Higgins Trust, and his long term partner Javier, a Peruvian working for the Latin American Service of the BBC while pursuing PhD studies.
Bill and Javier fairly early on in the course of the afternoon provided proof – if proof be needed – of the old saw that ‘there is no such thing as a free lunch’. They explained to me that one of their motivations in having me to lunch was to discuss their wish to make an application for Javier to be allowed to remain in the United Kingdom based upon their long-standing relationship. Javier had decided that he wanted to put his PhD studies on hold and to concentrate on his career. They both felt that it was enormously unfair that, under existing provisions relating to straight unmarried couples, a foreign partner in Javier’s position, who had lived with his or her partner for at least two years, would be free to make an application for leave to remain on that basis whereas they were precluded from doing so because of their sexuality.
I had to confess a total lack of expertise in framing such an application. I also had to be frank with them and indicate that my prognosis was that any such application was more than likely to be refused automatically and, while the system then in effect would allow a series of appeals stretching over a period of years, there was absolutely no guarantee of ultimate success and that, during the period of such appeals, Javier would not be allowed to travel.
Our lunch was, after all, taking place just four years after the enactment by Mrs Thatcher’s government, on 24 May 1988, of Section 28 of the Local Government Act 1988. This amended the Local Government Act 1986, stating that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship [Emphasis added].’ (The provision remained in effect until June 2000 in Scotland and until November 2003 in the rest of the United Kingdom.)
Bill and Javier, my reservations and warnings notwithstanding, remained steadfast in their desire to pursue such an application, and the application was lodged three weeks later, on 26 May 1992. It was supported by strong letters from the couple themselves and from an array of impressive friends and colleagues, including those with whom they worked at the Terrence Higgins Trust and the BBC World Service, all attesting to the seriousness and genuineness of the couple’s commitment.
A key legal argument in the representations which were made was the unfairness of treating same-sex couples who were unable to marry in a way entirely different from straight unmarried couples. Such straight unmarried couples could, if they were able to demonstrate two years of cohabitation, apply under an existing concession for the foreign partner to be granted an initial one year’s leave to remain to be followed after that by indefinite leave to remain (permanent residence).
Fighting for rights first achieved by the mistresses and concubines of (male) British Empire-builders
At this point it probably is worth digressing for a moment to mention the history of how that particular concession (DP2/93) came into existence since the concession itself was to evolve in a peculiar way as a direct result of the campaigning efforts initiated by same-sex couples like Javier and Bill.
In fact, until 1985, the right of common law female partners to join or remain with their British male partners had been enshrined in the Immigration Rules themselves (HC169, paragraph 49). This was no doubt an historical carryover of a provision created to allow staunch (male) British Empire-builders to bring home their mistresses and concubines to look after them in their dotage when retiring from their Empire-building activities!
This common-law spouse provision was removed from the Immigration Rules in 1985 and replaced by the concession DP2/93 which provided equal treatment for both female and male partners but only in the context of straight relationships.
The Home Office and the Deputy Chief Adjudicator say ‘No’ without addressing the issue raised
The Home Office in its wisdom refused Bill and Javier’s application within two months and, in doing so, entirely ignored the main argument made that the two were effectively in the equivalent of a common-law relationship and should be treated equivalently to a straight couple in a similar situation under the concession which provided that the foreign partner be granted an initial one year period of leave to remain.
Avoiding that issue altogether, the Home Office bizarrely referred in their refusal to another immigration rule relating to the granting of indefinite leave (permanent residence) to the close relatives (other than partners) of a British national or settled person in certain exceptional situations:-
An application has been made on your behalf for the time limit on your stay to be removed on the basis of your relationship with Mr H. The Immigration Rules make provisions for the time limit on a person’s stay to be removed if he is the close relative of a person settled here but you are not a close relative of Mr. H and the relevant requirements of the Rules are therefore not met.
An initial appeal to an adjudicator (an ‘immigration judge’ in today’s parlance) was heard by the then Deputy Chief Adjudicator, Mr. R. G. Care, and the original decision upheld in completely dismissive — and not entirely convincing — terms:-
I cannot see that there is anything even remotely approaching unfairness in the way in which the Secretary of State considered this claim, even if I were of the view that it is a matter for me to take into account. The point simply does not arise.
The couples who made these early applications necessarily had to be prepared to accept such knock-backs and fight on. But this was not without serious personal costs. As Javier wrote to me while I was finalising this article:-
The whole process did have a personal cost for me. The BBC was worried that I could not do foreign travels for my work and offered to give me a job contract to solve the situation. This would have meant to abandon our struggle but, quite happily, we chose to continue with the path which we had already started. In the end, to my good luck, it did not ruin my professional career, since I continued there for another 15 years.
But when I was finally allowed to travel and went to Peru, some 4-5 years had passed. I found my grandmother, the person I had grown up with, in her last few months of life, not being able to walk and not fully recognising who I was. And this was an extremely sad moment for me.
We did not think of ourselves as ‘exceptional’ or special at all. If anything, we always thought that as people, as couples, we had an inherent right to fight for this and be recognised. It was about time.
It should be pointed out that one reason why the earlier couples were being low-key was that the political and social context of the time was not only very conservative, it was also very aggressive against anything related to gay issues, which in the public’s eye was often convoluted with issues around HIV and AIDS.
Javier’s account of the sacrifices involved in being one of these early couples challenging the status quo is not in the least unique but, if anything, all too typical of what these couples faced. Javier and Bill’s case, like most of the cases which couples were pursuing in the early 1990s, was not resolved until after the enactment of the unmarried partners concession on 10 October 1997. In those days, because of the enormous delays in the appeal system, the appeals process following a negative decision could take many years to come to an end. In the meantime, however, the foreign partner did not have the right to travel outside of the United Kingdom and only retained the right to work if he or she had that right at the time of the original application. This of course created a serious and fervent commitment by such applicants to do everything within their power to bring about change – and incidentally created an army of volunteers eventually numbering in the hundreds without the right to work in the United Kingdom but with the time, energy and the will to do everything within their power to lobby for change. A very authentic grassroots movement.
The founding of the Stonewall Immigration Group (today’s United Kingdom Lesbian and Gay Immigration Group – UKLGIG) on 19 May 1993
(Spoiler alert.) A more enlightened — and ground-breaking — view was to be forthcoming when the case referred to above was heard by the Immigration Appeal Tribunal (the ‘Upper Tribunal’ in today’s parlance) in March 1994. Before we reach that part of the story, however, another important event occurred.
This was the founding of the Stonewall Immigration Group, predecessor of today’s United Kingdom Lesbian and Gay Immigration Group (UKLGIG), the first meeting of which took place on 19 May1993 at the then premises of the Stonewall lobbying group located near Strutton Ground Market off Victoria Street in central London.
The Stonewall Immigration Group marching in London, Gay Pride, mid 1990s
The circumstances of that meeting were that several couples like Javier and Bill had been considering or actually pursuing immigration applications along similar lines and each had contacted Stonewall either directly or through their lawyers to see if they were doing anything on the issue. The head of Stonewall, Angela Mason, and her deputy Anya Palmer, both acknowledged heroines of the fight for LGBT+ rights in the 1990s and beyond, indicated that the organisation hadn’t taken up the issue and didn’t currently have the resources to do so but that they would be more than happy to afford a meeting space to people pursuing the issue and to share with us their expertise in lobbying to effectuate change.
My 1993 diary reflects that the meeting was scheduled for 6:30 p.m. on Wednesday 19 May 1993 and my recollection (combined with the recollections of several others I have asked) is that it was held in Stonewall’s office attended by a handful of people including Bill, Javier and myself; Anya Palmer from Stonewall; Lawrence, a South African national in a position similar to Javier’s, and his partner, Roger, a highly thought of commercial property solicitor whom I knew well already since we were both volunteer lawyers at the Terrence Higgins Trust; Bryan and David, another couple in a similar situation; and a final couple, Mike and Daz, who were going through the same process, together with a handful of highly respected immigration lawyers including Lanis Levy, Jawaid Luqmani, Philip Turpin acting for Bryan and David, and, very importantly for the Stonewall Immigration/UKLGIG and for me in terms of the collegial professional ties we have forged since, a very young Matthew Davies, an immigration solicitor then and now at Wilsons Solicitors LLP where he currently is the Head of the Immigration Department. Matthew was acting for Lawrence and Roger.
I don’t think Matthew and I had met before then, but since then we have been doing our Abbott and Costello double act explaining the evolutionary process of LGBT+ immigration rights for partners through their various permutations at dozens, if not hundreds, of meetings of the Stonewall Immigration Group/UKLGIG over a quarter of a century — with nary a disagreement or harsh word or hint of competitiveness between us. These days the monthly partnership meetings of UKLGIG are staffed by a large number of volunteer lawyers, so joint appearances by Abbott and Costello in that forum are occasional but quite rare. We have, however, moved with the times and can more regularly be seen re-inventing ourselves as experts in issues relating to the protection of Europeans’ rights in the current Brexit environment. (Here we are, for example, with our law partners Ana Gonzales and Alison Hunter bringing our road show to Islington Town Hall.)
This first meeting of the group was, basically, an information sharing meeting. We went around the table and applicants and their lawyers explained how far along each couple was in pursuing a strategy of making an application based upon their long-term relationship and the failure and pitfalls they had encountered. (This was a time long before there were any victories to recount.)
Notwithstanding the negative results thus far, there was remarkable optimism in the room. This was not totally surprising since the applicants involved were a self-selecting group of highly accomplished and motivated individuals who – quite accurately – believed that their cases should ultimately speak for themselves. They had the confidence and self-assurance to believe that common sense, justice and fair play would ultimately prevail with the Home Office in deciding to recognise that the foreign partner in each of their relationships was someone who, very clearly, had a contribution to make to the United Kingdom and it would be a travesty as well as a violation of the couple’s human rights if said partner was not ultimately permitted to stay.
With this in mind, at that first meeting, the individuals concerned made very clear that they did not want at that point to ‘rock the boat’ – to announce their existence as a lobbying group or to begin public campaigning on the issue. Rather, they decided that, at least for the time being, they would continue to meet – probably on a monthly basis and with the intention of welcoming other couples making such applications and their legal representatives – but only to share information so that each couple could learn and to the extent possible avoid the pitfalls encountered by others. This was an attitude which continued to prevail at the next couple of meetings of the Stonewall Immigration Group which took place in the upper room of the Barley Mow Pub on Horseferry Road near the Stonewall offices on 29 June 1993 and 1 September 1993.
The case of Mark Watson – a new perspective affects the direction of the Stonewall Immigration Group
A new perspective and a new surge of energy to effectuate change came to the Stonewall Immigration Group at its next meeting on 1 December 1993, again at the Barley Mow Pub. This arose from a set of facts which, while extremely distressing at the time for the individuals concerned, ultimately provided a catalyst — both for those individuals and for the Stonewall Immigration Group — to become instruments in effectuating the eventual important changes in the law which were to take place.
Following graduation from university in 1989, a young man named Mark Watson became an immigration officer serving at Gatwick Airport. If I am remembering the story correctly – and I am sure Mark would have already set me straight if I am not – his decision to join the immigration service was not in the least motivated by an intrinsic interest in immigration law or immigration control but, rather ironically given what followed, because of the immigration service’s rather liberal policy on allowing sabbaticals early on in one’s service.
Taking advantage of this policy, Mark organised a group of friends the following year to take an expedition travelling on the Amazon and elsewhere in Brazil and South America. It was during the group’s stay in São Paolo that Mark met Ander Da Silva, a personable young Brazilian actor and model with whom he was to share his life for the following decade.
For full details about what happened next, you can watch a well-made 1999 BBC2 documentary which recounts the full story. Basically, however, Mark and Ander fell in love and Mark invited Ander to come to the UK to stay with Mark and his parents as a guest and to improve his English. When the time came for Ander to return home in April 1992, the couple were faced with a dilemma.
Mark knew from his personal experience of working within the immigration service that there was no chance of an application based upon their relationship being successfully resolved and, at that point, the Stonewall Immigration Group had not yet been founded. (Indeed, for years after its founding, a number of the country’s top immigration lawyers thought the goals of the group were unrealistic and unachievable and cautioned their clients against pursuing the applications the group was supporting.)
Very ill-advisedly, therefore, but motivated by love and by a sense of hopelessness, Mark went on to place false stamps in Ander’s passport purporting to grant him an initial one year’s leave to remain and then indefinite leave to remain. Finally, these ill-conceived actions caught up with the couple and their home in Croydon was raided by the police in September 1993 and both were arrested. Mark was told initially by the arresting officer that he would lose his job and Ander would be required to leave the country.
When in fact they returned to the police station after a period of police bail, both were charged and, even more ignominiously, refused further police bail, supposedly being judged to be ‘flight risks’. Happily, thanks to powerful advocacy by the barrister Frances Webber of Garden Court Chambers at Tower Bridge Magistrates’ Court and the generosity of Mark’s mum and dad in putting up bail for the couple, Mark and Ander were released the following day pending a trial date which in the end was scheduled in the Crown Court on 25 April 1994.
A deal was struck whereby Ander was permitted to leave the United Kingdom voluntarily without charges against him being pursued (and ultimately was able to re-enter the United Kingdom and be reunited with Mark). Mark, however, found himself unemployed and with time on his hands pending the trial six months down the line. I was his criminal lawyer at the time and suggested that his background and knowledge of current immigration law and practice would be a valuable asset for the Stonewall Immigration Group. He attended the next meeting of the group which, according to my diary, was on 1 December 1993, and from that time became a key member of the group.
The perspective which he brought to the group was a unique one. He had worked within the immigration service and was well aware of the restrictive attitudes prevailing there including, unfortunately, with respect to many of its members an engrained homophobia which was in fact a reflection of the strong homophobia pervasive generally in society, stoked by the sensationalist right wing press. His clear message to the group was that a ‘softly softly’ approach seeking special exceptional treatment for individual cases was simply not going to work unless backed by political action involving publicity, lobbying, strategic political thinking and, above all, changing public attitudes. This, it was argued, could be done by using the sympathetic individual cases being pursued to modify public opinion — to demonstrate again and again the compassionate nature of the plights faced by individual couples as a way of pursuing institutional change in the way that the cases of all such couples would be dealt with.
Mark went on to work voluntarily for the group for a year. The publicity around his case meant many more couples came forward, some of whom had themselves taken ill-advised steps along the way which they wanted to rectify. The group itself eventually was able to raise funds to pay for him to be employed through Stonewall to lead on the campaigning and lobbying. strategy and planning.
The monthly meetings outgrew their initial pub venues and grew and grew to the point where they were regularly attended by 200 and more, at one point taking place regularly in space large enough to accommodate such crowds in the Wigmore Hall complex before moving on to the University of London Union. These were people who, as a result of the group’s efforts, had decided that they too wished to make or at least consider making applications based upon their genuine relationships notwithstanding the risks and consequences.
Immigration Appeal Tribunal – Ground-breaking decision in early 1994
As the Stonewall Immigration Group organised more effectively, increasing numbers of couples made applications for a foreign partner to be granted leave to remain in the United Kingdom.
The effort and resilience of couples prepared to fight difficult legal battles, together with lawyers who used every available legal and political method to pursue their clients’ cases, plus the strong support of the Stonewall Immigration Group, resulted in a number of significant successes.
In those days, the convoluted appeals processes and the delays inherent in the system turned the application into a veritable game of ‘Chutes and Ladders’ which could go on for years. Indeed, the group produced an amusing but extremely helpful guide to the process for applicants and their lawyers following such a format!
In early 1994 the Immigration Appeal Tribunal decided that the Home Secretary had improperly responded to two applications based on same-sex relationships (one of them Bill’s and Javier’s, and the other Roger’s and Lawrence’s) when he simply dismissed them as falling outside the Immigration Rules. The highest immigration court in the United Kingdom recognised that a parallel could, and indeed should, be drawn between the way in which unmarried straight partners and unmarried same-sex partners were treated.
In May 1994 one of the other original member couples of the Stonewall Immigration Group (Bryan and David) had arranged for their MP, Dr Lynn Jones, to schedule an adjournment debate on their case in the House of Commons. At Lynn’s encouragement, they had been lobbying parliamentarians, and had garnered cross-party support from eight MPs and fifty-two peers. Despite this support and a positive adjudication at appeal, the then Immigration Minister, Charles Wardle, had refused to meet Lynn Jones to discuss the case. An adjournment debate was a last resort. Whilst continuing to stand by the reasons for the refusal of their application, the Immigration Minister appeared to admit, for the first time, that there might be such a thing as a policy on same-sex couples:-
The policy on the admission of homosexuals to join or remain with a partner settled here is kept under constant review, and each application is considered carefully on its individual merits. Discretion will not normally be exercised in an applicant’s favour unless compelling compassionate circumstances are present.
The IAT ruling in early 1994 had suggested that there was clear inequality in the application of the unmarried partners concession DP2/93. Reacting to this, however, the Home Office followed a truly bizarre and twisted strategy. On 22 February 1996, the Home Office announced that it was abolishing the concession relating to unmarried partners altogether, thereby depriving straight couples of the benefit of the concession while at the same time offering no relief to same-sex couples. This disposed of the issue of unequal treatment by creating a true ‘lose-lose’ situation.
In the meantime and despite this, the Stonewall Immigration Group monitored the approach taken by the Home Office and observed an apparent change of policy in cases decided after April 1995. Whether it was a direct reflection of the unspecified ‘policy’ which Charles Wardle has referred to in his 1994 House of Commons statement remains unclear but, between April 1995 and May 1997, the group became aware of twenty cases where applications by the foreign same-sex partner were successful. Once some cases began to be favourably considered, the Stonewall Immigration Group gained impetus. While the Home Office remained unprepared to articulate what its policy, if any, was, lawyers arguing in the courts could point to the existence of what appeared to be an emerging policy.
Sadly, if one examined the trend in such applications, many, very possibly most, of them were granted – rather cynically – on the basis that the foreign applicant was the partner of a gay male suffering the effects of serious HIV-related symptoms and that the presence of the foreign partner as a carer would reduce the costs of such cases to the NHS and Social Services in caring for the British-based partner until his death. (It was more or less exactly during this period that truly effective combination therapy was just beginning to be used to treat HIV-related illness which, until then, ultimately was likely to lead to the death of the patient as a result of any one of a number of horrific illnesses. Many, if not most, gay men of the era can recount stories of visiting a friend seriously ill with HIV-related illness during this period, thinking very probably this was their friend’s death bed but, as a result of the introduction of combination therapy, being proven wrong as attested to by the lively normal social lives which such individuals are seen to be leading now a quarter of a century later.)
It was also the case that a handful of positive decisions were taken with respect to individuals whom the Home Office took to be worthy of special treatment because of the accomplishments or notoriety which they had achieved in their professional lives.
It should be noted that, during this period, while the Conservative Government of the day clearly was seeking to stymy the efforts of the group to achieve recognition of same-sex relationships, individual MPs and peers across the political spectrum found the individual cases amongst their constituents compelling and endeavoured to help. Lawrence and Roger, who attended that first meeting in 1993, in reviewing an earlier draft of this article, made the point, for example, that their MP John Bowis, a Conservative and a junior minister in the Conservative government, advocated strongly on their behalf, no doubt putting him into something of an awkward situation.
First positive recognition of same-sex couples in British law
The Immigration Group engaged in serious lobbying activities in the run up to the May 1997 general election. The Group succeeded in obtaining the commitment of the Shadow Home Secretary Jack Straw that, if elected, a Labour government would recognise same-sex relationships for immigration purposes.
Mark Watson, in commenting on an earlier draft of this article, reminded me of a key moment which was probably influential in leading to that commitment. The group had organised an evening in the Jubilee Room in the Palace of Westminster specifically so that interested Members of Parliament could meet the individual couples affected and hear their stories. This was sometime in 1996. Mike O’Brien, QC, then MP for North Warwickshire and Shadow Home Office Minister, attended and said a few warm words.
Then, in Mark’s words:
He was about to shoot off, but we persuaded him to speak to some of the couples. He spoke to two couples and then took off his jacket, cancelled his next appointment and spoke to every couple in the room. He spoke to me at the end and admitted he hadn’t quite grasped the terrible impact the current policy was having on people’s lives and that he was determined to do something about it and he did.
Once Labour achieved power, the Group lobbied hard to ensure this commitment was kept and within days of the election obtained the agreement of the immigration minister that all outstanding appeals relating to unsuccessful same-sex relationship applications should be adjourned until a new policy was in place.
Nonetheless, a rather long delay followed before action was taken. It is worth recalling that this was during a period when much of the tabloid press had as two of its key targets for vilification 1) foreigners and 2) members of the lesbian-gay community. This was an issue which wrapped up both groups of ‘hate figures’ into one neat package bound to be unpopular amongst some.
The strategy of the government seemed to be to wait until there would be other news which might minimise the impact of this particular announcement. Angela Mason, in her review of an earlier draft, reminded me that the ‘other news’ in question probably related to political rifts arising within the Conservative Party in the run up to their party conference. Whether or not that was the case, finally, on 10 October 1997 the unmarried partners concession was announced, which recognised same-sex relationships. It was the very first legal recognition of same-sex couples in British law. A concession is not written in the immigration rules but is something which immigration officials follow and implement nonetheless. The concession made it possible for same-sex partners to make an application for the foreign partner to remain in the United Kingdom if they had lived together for four years.
The four-year cohabitation requirement created an impossible stumbling block for many couples and the Stonewall Immigration Group continued to lobby and to challenge the policy through the courts. In June 1999, the unmarried partners concession was amended and the cohabitation period was reduced to two years.
Equal immigration rights
In October 2000, the unmarried partners concession became an Immigration Rule, an important development as a rule is a statutory instrument and of far more legal significance than a concession.
Finally, in November 2004 the Civil Partnership Act was passed. Once this legislation came into effect in December 2005, it ensured equal immigration rights for same-sex couples.
This of course was followed by the Marriage (Same Sex Couples) Act 2013 which became law under David Cameron’s government, allowing same-sex marriage in England and Wales, which was passed by the UK Parliament in July 2013 and came into force on 13 March 2014, with the first same-sex marriages taking place on 29 March 2014.
Since, however, the legal entitlements attached to both civil partnership and marriage were the same, it was the first of these developments which, at last, brought about real equality of immigration partnership rights for same-sex couples.
Stonewall Immigration Group becomes the charity UKLGIG and finds a home
In July 2000, on receipt of an £892,643 Big Lottery grant, Stonewall (by then in Clerkenwell) decided to move and no longer had room for the Stonewall Immigration Group. Briefly unsure of the future, members of the group built and launched a website in 3 weeks, putting its core ‘Briefing Document’ online, and were promptly accused by the Mail on Sunday of using lottery money “telling homosexuals around the world how to exploit UK immigration laws” (100% fake news – both with respect to the facts and the implication – the group never having received any funding from Stonewall or its Big Lottery grant). The article also falsely claimed that the group advised individuals entering the United Kingdom with a view to applying for leave to remain based upon their relationship to conceal from the immigration officials at the port of entry the reason for their arrival. In fact, couples in such a situation instead were entering the United Kingdom – entirely legally – via the border with the Republic of Ireland and, therefore, were able to enter the country without being interviewed by British immigration officers.
Undaunted, the group found ‘luxurious’ offices sharing a small room above the Central Station pub in King’s Cross with Gay & Lesbian Legal Advice (GLAD). It was there that the group first encountered Erin Power who was working part time for GLAD. Erin became the group’s first part-time administrator after GLAD lost their funding and eventually went on to become an Executive Director of the charity.
A subsequent move was made to the offices of gay.com in Soho (where Mark Watson was the European Director) and it was while there in January 2004 that the Stonewall Immigration Group rebranded as the UK Lesbian & Gay Immigration Group (UKLGIG) and achieved charitable status.
Due to a reorganisation at gay.com, UKLGIG had to move again and found a temporary home in one of the offices at our firm. In autumn 2005, just before the civil partnership legislation came into force (achieving effective equality in immigration law), the executive committee of UKLGIG decided to refocus their work to support those with the most pressing immigration need – people seeking asylum because of their fear of persecution in their home country based upon their sexuality — initiating the Asylum Support Project. In early 2007, coinciding with the appointment of the first full time Executive Director, Dr Sebastian Rocca, the group moved into independent offices in the CAN Mezzanine building in Southwark.
UKLGIG continues, now under the leadership of Leila Zadeh and a dedicated board of trustees with a team of eight staff and around 40 volunteers. A number of lawyers and organisers, including old-timers and newcomers, continue to provide assistance on partnership issues through monthly advice sessions (which have continued now for more than a quarter century) and by maintaining up to date guidance on the organisation’s website. Many of these volunteers and those working with their firms are also involved in the important asylum initiatives which include monthly advice sessions, legal surgeries, workshops and training as well as website guidance.
The continuation of the partnership services has become particularly valuable since the implementation of the new rules for applications by partners and other family members in Appendix FM of the Immigration Rules. These came into effect in July 2012 as an element of Theresa May’s policy as Home Secretary of creating a ‘hostile environment’ for immigrants. These rules and the procedures arising as a result of them have made the process of applying successfully for permission to come to the UK or to remain here on the basis of marriage, civil partnership or an unmarried relationship substantially more difficult for foreign partners of whatever sexuality.
One of the difficulties faced by such couples is that full comprehensive information about these procedures is not found in any one place on the Home Office website making it a very difficult task for individuals to pursue successful applications without risking refusal because of not being aware of one requirement or another. A single document relating to meeting the financial requirements of the rules, for example, is more than 70 pages long, quite difficult to find and even more difficult to understand in some places even for lawyers who have been working in the field since the introduction of the new requirements.
Failure to fulfil precisely the requirements set out there can and often does result in refusal of an application and lost fees of thousands of pounds even though the missing document in question could readily have been provided if the applicant was aware of its crucial importance. Furthermore, the Immigration Rules themselves included in Appendix FM are at times opaque. As the Law Commission Report on the Simplifying the Immigration Rules, published on 14 January 2020, states, the rules are ‘overly complex and unworkable – a drafting style, often including multiple cross-reference, that can be impenetrable’.
While one hopes that the simplification project bears fruit, even if the application process were to become entirely straightforward to navigate, some of the fundamental requirements which were imposed for the first time in July 2012 will continue to create a substantial impediment for many. As Philip Turpin, one of the lawyers at that first meeting of the group way back in 1993, commented when reviewing a draft of this article, “…they would still remain an ugly obstacle to family life for some. We work with many couples, straight and gay, who are separated due to the financial or language requirements.”
This has made the contributions of the partnership volunteers in UKLGIG far more important than they had been during the years following the advent of civil partnership and prior to July 2012. Rather amusingly, in recent years, there has even been the occasional incident of straight individuals ‘smuggling themselves in’ to our regular Saturday advice sessions pretending to be a member of the LGBT+ community because comprehensive advice about the application process is not widely available and the goalposts are frequently being changed. (One is happy to report that, in such cases where such interlopers have been ‘outed’, usually through their own admission or the LGBT+ friend who has brought them, the culprits have almost universally made a generous donation to the charity commensurate with their means and return home happy and satisfied that they have acquired some real understanding of how the system works.)
So, more than a quarter century after the struggle for equality in this area began, such equality has been achieved. It remains, however, an equality existing in a system which itself remains seriously flawed.