Homophobia and Discrimination on Grounds of Sexual Orientation ...

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European Union Agency for Fundamental RightsMemberStateRecognition of persecution on grounds ofsexual orientation leading to refugee statusSweden The Aliens Act (SFS 2005:716) replicates the 1951Geneva Convention definition of the refugee, butmentions explicitly sexual orientation as a ground ofpersecution (section 4, paragraph 1); transpersonsare included under the rubric of ‘gender’, alsoexplicitly stated among the recognised grounds ofpersecution.UnitedKingdomThe relevant asylum legislation 195 defines therefugee in accordance with the 1951 GenevaConvention, which has been interpreted to coversexual orientation as a ground of persecution in thecase of Shah <strong>and</strong> Islam. 196Recognition as family members of samesexspouses <strong>and</strong> unmarried partners in astable relationshipNo information availableThe civil partner of an individual who hasbeen granted refugee status may join him,provided the civil partnership predates theclaim to asylum <strong>and</strong> provided the partnershave been living together permanently (Part11, paragraph 352A, of the ImmigrationRules HC 395); the same rules are extendedto parties who have lived together in arelationship akin to marriage or a civilpartnership for two or more years (paragraph352AA). The same regime benefits partnersof a person having been granted subsidiaryprotection.195UK/ Immigration Act 1971 c.77 (28.10.1971); UK/ Immigration Act 1988 c.14 (10.05.1988); UK/ Asylum<strong>and</strong> Immigration Appeals Act 1993 c.23 (01.07.1993); UK/ Immigration <strong>and</strong> Asylum Act 1999 c.33(11.11.1999); UK/ Nationality, Asylum <strong>and</strong> Immigration Act 2002 c.41 (07.11.2002); UK/ Asylum <strong>and</strong>Immigration (Treatment of Claimants, etc) Act 2004 c.19 (22.07.2004); UK/ Immigration, Asylum <strong>and</strong>Nationality Act 2006 c.13 (30.03.2006), Immigration rules HC 395.196Islam v Secretary of State for the Home Department; Regina v Immigration Appeal Tribunal <strong>and</strong>Another, Ex parte Shah [1999] 2 WLR 1015, [1999] 2 AC 629.102
<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysis4. Family reunification4.1. The general frameworkCouncil Directive 2003/86/EC of 22 September 2003 on the right to family reunification(‘Family Reunification Directive’) 197 seeks to contribute to the harmonisation of theconditions for entry <strong>and</strong> residence of third country nationals in EU Member States. 198 Itensures that the spouse will benefit from family reunification (Art. 4/1/a). It is for eachMember State to decide whether it shall extend this right also to unmarried or registeredpartners of the sponsor (i.e., the person who seeks to be reunited on the territory of aMember State with members of his family, or with whom the latter seek to be reunited):each State may grant a right to family reunification to ‘the unmarried partner, being athird country national, with whom the sponsor is in a duly attested stable long-termrelationship, or of a third country national who is bound to the sponsor by a registeredpartnership […], <strong>and</strong> of the unmarried minor children, including adopted children, as wellas the adult unmarried children who are objectively unable to provide for their own needson account of their state of health, of such persons’ (Art. 4/3). Art. 5/2 of the Directiveadds that ‘When examining an application concerning the unmarried partner of thesponsor, Member States shall consider, as evidence of the family relationship, factorssuch as a common child, previous cohabitation, registration of the partnership <strong>and</strong> anyother reliable means of proof’.The Family Reunification Directive thus leaves it to the Member States to choosewhether or not to extend the right to family reunification to the unmarried partner of thesponsor. However, in implementing the directive Member States should take intoaccount their obligations under the European Convention on Human Rights, <strong>and</strong> moregenerally, the fundamental rights which are part of the EU legal order. It may be noted inthis regard that, under the ECHR, granting a right to family reunification is an obligationfor the States parties, <strong>and</strong> not merely a favour they may concede, where the right torespect for private or family life would be violated in the absence of familyreunification. 199 Specifically, where the refusal by a State to allow a durable partnershipto continue by denying the possibility for the partner to join the sponsor results in adisruption of the right to respect for private life such that this would constitute a violation197OJ L 251 of 3.10.2003, p. 12.198However, Denmark, Irel<strong>and</strong> <strong>and</strong> the United Kingdom do not take part in this directive.199See for example Eur. Ct. H.R., Sen v. Netherl<strong>and</strong>s, judgment of 21 December 2001, application n°31465/96.103
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