Thu, 12 May 2016
In Court 71 of the Royal Courts of Justice at 10:30am this morning, the Court of Appeal handed down judgment in CB (India) and SB (India) v Secretary of State for the Home Department  EWCA Civ 451. The Court had last visited the immigration and human rights claims of a same sex couples in 2006 in the case of Krasniqi. However, this is the first time the Court has delivered judgment in the context of immigration and human rights law and same-sex migrant couples, who have entered into a civil partnership, or marriage, and are challenging removal on the basis that the country of origin provides no legal recognition or protection of their relationship.
CB and SB have been lawfully present in the United Kingdom since their entry as friends in 2007, forming a relationship following entry, and entering into a civil partnership in Scotland in 2008, converted into marriage in 2015. They applied to extend their leave to remain in 2011 on the basis of this human rights claim, prior to the expiry of their earlier leave to remain.
The Court in this landmark judgment analysed evidence with respect to the country background material on India, which had not been part of the evidence in the Tribunals below. It also accepted, following the European Court of Human Rights cases of Schalk and Kopf (2010) and Oliari (2015) the positive obligation within Article 8 of the European Convention on Human Rights and family life for Member States to provide legal recognition and protection to same-sex couples. Oliari was a case involving a gay couple from Italy, and last night the Italian government complied with the Strasbourg Court’s ruling and passed legislation enabling same-sex couples civil unions, making Italy the 27th out of a total 47 countries in the Council of Europe to afford same-sex couples legal recognition and protection. The effect of the judgment in Oliari requires all 47 countries to provide some form of legal recognition and protection to same-sex couples.
However, the Court of Appeal in this morning’s judgment held that the Appellants cannot resist removal, even though it accepted India provides no legal protection or recognition of same sex couples, this would not be a flagrant denial or violation of their right to a family life [paragraphs 54 to 75] and/or would be proportionate on the basis of the United Kingdom’s right to immigration control and a lack of evidence that the couple will suffer violence on return [paragraphs 76 to 77]. The Appellants will be seeking permission to appeal to the Supreme Court.
No5 Chambers’ barrister S Chelvan was instructed via the Bar Council’s Public Access Scheme.