HC Deb 22 February 1996 vol 272 cc532-41

1A. In subsection (4) of section 1 of the 1971 Act (general principles), after the word "dependants", there shall be inserted the words "(including the spouses or interdependent partners)".'.

Madam Deputy Speaker

With this, it will be convenient to discuss also the following amendments: No. 19, in page 8, line 3, at end insert—'Domestic workers

1A. In subsection (4) of section 1 of the 1971 Act (general principles), after the word "visitors," there shall be inserted the words "or as accompanying domestic workers,".'.

No. 2, in page 8, leave out lines 29 and 30 and insert—Interpretation—

4.—(1) In subsection (1) of section 33 of the 1971 Act (interpretation), there shall be inserted, in the appropriate place in alphabetical order, the words—

(2) In subsection (4), after the'.

No. 20, in page 8, leave out lines 29 and 30 and insert—'Interpretation—

4.—(1) In subsection (1) of section 33 of the 1971 Act (interpretation), there shall be inserted, in the appropriate place in alphabetical order, the words—

(2) In subsection (4), after the'.

Government amendment No. 49.

No. 58, in schedule 2, page 10, line 21, at end insert—'Persecution on grounds of sexual orientation— A1. In subsection 2 of the 1993 Act (primacy of Convention), after the word "Convention" there shall be added the words"; and in interpreting the Convention, for the purposes of the immigration rules, persecution by reason of membership of a particular social group shall be taken to include persecution by reason of sexual orientation.".'.

Mr. Gerrard

I tabled amendments Nos. 1 and 2 with the hon. Member for Brigg and Cleethorpes (Mr. Brown), who is unfortunately unable to be present.

The amendments would deal with the discrimination that currently exists in the immigration rules against gay and lesbian couples, which make no provision for any unmarried—or non-marital, to be more accurate—relationship, whether homosexual or heterosexual. Spouses and fiances are recognised, but no other non-marital relationships are explicitly recognised. Some 10 or more years ago, the Home Office recognised reality and issued policy guidelines that covered unmarried, cohabiting heterosexuals. It is, therefore, possible for an unmarried, cohabiting couple—if they are heterosexual—to obtain entry clearance as partners. Obviously, they have to produce evidence of the relationships.

In 1993, some 400 unmarried heterosexuals applied and were allowed to remain in the United Kingdom on the basis of the relationships, but similar applications from gay and lesbian couples are routinely refused, despite the fact that there have been one or two immigration tribunal decisions that suggested that it would be appropriate to deal with such an application as a relationship between two people as partners. The numbers involved are quite small—in 1995, the Home Office received 60 applications from gay and lesbian people who wished to remain on the basis of a relationship. In those cases, the average length of the relationship was approximately five years and, therefore, significant and of some length.

The present official policy is to consider each application from interdependent homosexual partners on their individual merits, but permission to stay is granted only in exceptional and very compelling circumstances. The only examples of which I am aware in which permission has been granted are one or two cases in which the British partner was suffering from a terminal AIDS-related disease and the other partner was the carer. People have been allowed to stay on that basis, but even then the Home Office seems to have taken a rather tighter attitude recently and refused leave.

5.45 pm

The arguments for the amendments are fairly straightforward, and include the effects of the present policy on what are, by any standards, stable, long-standing and interdependent relationships between people who have every intention of staying together. One example is the case of a 34-year-old man, Mark, who is a chartered accountant and senior consultant with a well-known consultancy firm, earning a good salary. In 1991, he met a 37-year-old Brazilian called Paulo who was completing his PhD in London. They lived together from 1992 and, at the time, Paulo had a work permit. When the work permit ran out, he applied to stay on the basis of the relationship, but was refused. In similar circumstances, an application by a heterosexual couple would almost certainly have been accepted. The couple had been together for four years and had a stable, interdependent relationship. Paulo is now back in Brazil.

People in such circumstances are faced with two options. One is simply to separate; the other—as undoubtedly sometimes happens—is for the foreign partner to make a marriage of convenience to stay in the United Kingdom. Nobody wants that to happen.

I see no reason why relationships of the type that I have mentioned should not be recognised. I am sure that there are a few hon. Members—fortunately, a diminishing number—who believe that no homosexual relationships should be recognised and who regard such relationships with complete distaste, but even they should acknowledge that stable homosexual relationships occur.

The amendments would provide only equality with heterosexual relationships; that is all that is required. I would expect partners to be able to produce evidence to back up their claims that they were in a relationship that they intended to be long-standing and permanent. The change would cause no great difficulty. Some other countries have already recognised same-sex relationships for immigration purposes; Australia, New Zealand and Canada have, as have a number of European countries—Denmark, Finland, the Netherlands and Norway. Partnership rights will probably be introduced soon in Spain. South Africa grants equal rights under the 1994 constitution to same-sex relationships. It would not be difficult or unusual if this country were to change the rules.

The amendments would clarify the immigration rules, which ought to refer to an interdependent partner, meaning a person in a genuine and continuing relationship of interdependency with one other person which involves living together and a mutual commitment to a shared life". As I said earlier, all non-marital relationships technically contravene the present immigration rules, which use the terms "spouse" and fiance(e) with a view to marriage". They do not refer anywhere to cohabitees. The amendments would tidy up the immigration rules by stipulating that long-term relationships other than marital ones ought to be recognised.

Amendment No. 58, which has been tabled by my hon. Friend the Member for Leyton (Mr. Cohen), acknowledges that individuals are persecuted for their sexual orientation, by proposing that, included in schedule 2, should be the words, and in interpreting the Convention, for the purposes of the immigration rules, persecution by reason of membership of a particular social group shall be taken to include persecution by reason of sexual orientation. That was discussed briefly in Committee. There are European countries in which to be homosexual is to invite persecution, so I commend my hon. Friend's amendment.

Mr. Alan Howarth (Stratford-on-Avon)

I support the powerful plea made by my hon. Friend the Member for Walthamstow (Mr. Gerrard) because it is plainly right—as a matter of recognising modern realities and of justice—that the immigration rules should not discriminate against unmarried but truly interdependent partners, whether they are heterosexual or homosexual. I echo my hon. Friend's point that the Government should address the question of individuals from countries in which they are liable to be persecuted for their homosexuality. It may be that amendment No. 1 covers that concern. If neither it nor any other amendment does so adequately, I hope that the Government will think carefully and constructively about tabling an amendment in the other place.

A number of countries on the Government's white list actively persecute people who engage in consenting homosexual acts. An Amnesty International report on Romania published last year stated that people there are imprisoned and treated with great severity solely for their homosexuality. In Pakistan, prison sentences of between two years and life are imposed on homosexuals, who are also flogged for the offence. India has a maximum sentence of life imprisonment. The Bill fails to recognise the fear and reality of such persecution.

Last year, in the case of Ioan Vraciu—a Romanian soldier whose partner was arrested and tortured for his homosexuality—a UK immigration appeal tribunal ruled that gay people could be seen as a distinct social group for the purposes of interpreting the 1951 UN convention on the status of refugees. Hitherto, the Home Office has refused to accept that proposition. Mr. Vraciu's application for asylum did not succeed, although the immigration adjudicator declared that it was unnatural and contrary to human rights to criminalise private gay sex.

The Government should be willing to amend the Bill, by accepting the amendments before the House or tabling amendments in the other place, to establish that serious and justified fears of persecution on the ground of homosexuality or the committal of homosexual acts are legitimate reasons for seeking asylum in the UK. The United Nations convention offers protection to people who have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Gay men and women are plainly members of a particular social group, and they should be seen as such in the sense that the convention means when they have a justified fear of persecution. Such persons ought to have the protection of the law, the administration of which should be regulated by Home Office guidelines requiring sensitive and non-discriminatory handling of lesbian and gay asylum applications. People should not be discriminated against for their sexuality, any more than for their sex, race, religion or disability. The Republic of Ireland—not hitherto in the van of liberal social policy—has already legislated sensibly and humanely along those lines. In justice, we should do no less.

Mr. Henderson

I have sympathy with amendments Nos. 1 and 2, and I support amendments Nos. 19 and 20. As to the former, my hon. Friends have identified the difference of treatment of persons who are married and those who live together, whether they be homosexual or heterosexual. In today's world, we should recognise social realities. Many couples around the world are not formally married but have a stable, sound and loving relationship—which the law of this country and others should recognise.

If two persons who are not formally married want to enter the UK, it is at the Home Secretary's discretion whether an application for both persons in the relationship is permitted. Often, separate applications will be made, although in some circumstances that is not possible. I understand that far more cases of heterosexual couples than homosexual couples go before the Secretary of State. I am not saying that, in the circumstances of statutory provision for entry, those statistics would necessarily be mirrored. Homosexual couples might be deterred from making an application because they do not believe that they would be successful. I cannot say that that is the case, but I would not be surprised.

There would clearly be scope for circumvention of our intention to allow genuinely interdependent couples to be treated in the same way as a married couple, so there is a need for considerable investigation by the Government, Opposition parties and individual hon. Members, in determining practical regulations to meet the concerns and sympathies that have been expressed for the search for a solution.

I am not sure that amendments Nos. 1 and 2 would provide the solution, and I have reservations about them. I certainly want further investigation. However, I sympathise with those who want to find a solution to the problem.

Amendments Nos. 19 and 20 fringe the main purpose of the Bill but are still important. They relate to persons who are employed in virtually a slave relationship by foreign citizens who are allowed entry to the UK, often as visitors. Such persons are in some circumstances permitted to bring their domestic servants, who are often closely tied to the original applicant. I have been told of domestic servants who have been physically, verbally and sexually abused, but who have been unable to do anything about their predicament—unless the person by whom they are employed agrees to return them to their country of origin. Often, servants' passports are held by their employers. Sometimes, they do not even have independent passports. That makes it extremely difficult for them to end the relationship.

The amendments do not seek regulations to govern the position of those poor people but to categorise them separately in immigration law, so that the Secretary of State can lay regulations that apply to them. If the Secretary of State is prepared to allow it, I hope that those workers will be allowed to transfer from one employer to another on exactly the same conditions as applied when they entered the country. I do not ask that they be allowed to come in as a domestic servant to someone who has made an application on a visitor's passport and be able to leave that employment to seek normal employment with another person in the United Kingdom. If they wanted to apply for employment on the normal basis, they would be free to do that; the amendments do not attempt to deal with that situation.

I hope that the Government will recognise that, in some cases, abuses that occur in this country arise from the "special circumstance". I hope that the Government will feel able to meet the concerns that have been expressed in the House.

6 pm

Mr. Harry Cohen (Leyton)

I apologise to you, Madam Deputy Speaker, and to the House for not being here at the start of the debate, as I was held up in my office.

I tabled amendment No. 58. I shall be brief, as I know that hon. Members have referred to it, including my hon. Friend the Member for Stratford-on-Avon (Mr. Howarth). My amendment refers to the persecution of a particular social group on the grounds of sexual orientation. Gays and lesbians are regarded as a particular social group, and that should be taken into account in the Bill. Persecution because of membership of that particular social group should be a reason to allow people to stay.

I tabled my amendment on behalf of the organisation Outrage! It makes a good case, which I have passed on to the Minister. It expressed great concern that three of the countries included in the Government's so-called white list actively persecute and severely punish people who are convicted of engaging in consensual homosexual activity.

Romania was condemned in an Amnesty International report in 1995 for its human rights record of imprisoning homosexuals and for torturing detainees. In Pakistan, people who engage in consensual homosexual acts are punished with prison sentences of between two years and life, and flogging. India continues to punish people who engage in consensual gay sex with a maximum sentence of life imprisonment. There is no recognition whatever of the fear of persecution on the grounds of homosexuality in the United Kingdom's present political asylum legislation. Indeed, applications made on those grounds are invariably turned down.

Last year, Ioan Vraciu, a Romanian soldier—I think all of this has been mentioned, so I shall be brief—won his case. An immigration appeal tribunal ruled that gay people could be seen as a distinct social group for the purposes of interpreting the 1951 United Nations Convention relating to the status of refugees. The Home Office refused to accept that argument and appealed against the decision. The Home Office lawyer, Alexandra Pond, cast doubt on Mr. Vraciu's claims and requested that doctors should test him to see whether he was really gay, which was amazing.

Mr. Gerrard

It is astonishing to think what the test might have been.

Mr. Cohen

Yes. Incredibly, her argument was accepted by the subsequent hearing and Mr. Vraciu lost his case, and so the special category for homosexuals is not currently accepted in law. It should be. Through my amendment, I hope that the Home Office will accept that. There are countries that persecute gays and lesbians, who might be seeking refugee status in this country to protect themselves from the harsh penalties that they might face there. Those countries include countries that are on the white list.

I urge the Minister to accept my amendment, or at least say that he can see that there is an argument for accepting such applications when these cases arise.

Mr. Kirkhope

We all appreciate the sincerity with which supporters of the amendments have spoken this evening, particularly the hon. Members for Leyton (Mr. Cohen), for Walthamstow (Mr. Gerrard) and for Stratford-on-Avon (Mr. Howarth), but frankly it is simply not a sensible or practical approach to set out the interpretation of the United Nations convention in domestic primary legislation.

With reference to amendment No. 58, it is ultimately for the courts to determine the interpretation of the convention rather than the Government. Sexual orientation is taken into account in the assessment of individual asylum claims where relevant, but our approach is not to make an abstract judgment as to whether homosexuals or any other set of people might or might not be regarded as a social group. Claims are considered on their individual merits in the light of all the circumstances of a particular case, and in Committee my hon. Friend the Minister of State wrote to the hon. Member for Liverpool, Mossley Hill (Mr. Alton) on a number of points, including on the question of homosexuals in relation to convention criteria. She set out the Government's position fully. The correspondence was made available to all members of the Standing Committee, and copies were placed in the Vote Office before Report began.

Mr. Alton

I had hoped that the Minister would refer to that letter. As he said, many of the issues, including the cases that, quite properly, were raised today, were referred to in Committee, and the letter was sent by the Minister of State on 31 January. It might be helpful to hon. Members if the letter were published so that they can see it properly. Members of the Committee found it helpful.

Mr. Kirkhope

I am sure that there would be no problem about having the letter placed in the Library, if that is the hon. Gentleman's wish.

I shall deal first with the drafting of amendments Nos. 1 and 2 and then set out some of the policy issues that they raise.

The acceptance of these amendments would result in common-law and homosexual relationships, which involve two people living together with a mutual commitment to a shared life, being accorded the same status as those who are married, for the purpose of immigration. The only objective test for the strength of a relationship in an immigration context is marriage. The concept of an interdependent partner is vague and ill-defined. These amendments would allow any person to claim that he or she was involved in a genuine and lasting relationship and consequently qualified for leave to remain in the United Kingdom without making the commitment to the relationship that is implicit in marriage. The introduction of the concept of an interdependent partner to the Immigration Act and immigration rules would cause difficulties of interpretation, would result in an increase in contested cases and would make the administration of immigration control more difficult than at present.

Several hon. Members

rose—

Mr. Kirkhope

I shall continue for a moment.

I said that the amendments raise policy issues. Therefore, for the convenience of the House, I shall set out details of a change in policy that we intend to make to the way in which applications for leave to enter or remain as a partner in a heterosexual common-law relationship are considered. This point arises directly from the amendments, and it seems right for us to bring it before the House on the suitable occasion of the debate on these amendments.

The number of foreign nationals seeking to remain here on the basis of a common-law relationship has increased from about 400 in 1991 to about 900 now. There is evidence that some foreign nationals are seeking to prolong their stay here by claiming to be partners in common-law relationships. The immigration rules provide for the admission of married couples and fiances who are expected to marry within a reasonable period. The rules do not provide for the admission of foreign nationals who are partners in common-law relationships. In the light of the figures to which I have referred, my right hon. and learned Friend the Home Secretary has decided that the requirements of the immigration rules should be henceforth strictly applied.

A foreign national who wishes to join or remain here with a person settled here must be married to that person, except for those who qualify under the immigration rules as fiancés or fiancées. Foreign nationals who apply to enter or remain on the basis of a common law relationship can, with immediate effect, expect to have their applications refused.

It is not our intention to apply these new requirements retrospectively. But any foreign national refused leave to remain on the basis of a common-law relationship who does not leave the United Kingdom voluntarily may normally expect deportation action to be taken against him. In deciding whether deportation is the appropriate course, consideration will be given to any compassionate factors that may be present.

I shall give the House some examples of the sorts of case which have caused us concern. An applicant who was admitted as a working holidaymaker sought leave to remain as a common-law spouse. Checks of the evidence provided in support of the application revealed that the applicant was simply sharing a house with a British citizen and that no relationship existed.

In another case, a visitor sought leave to remain as a common-law spouse. Inquiries into the evidence produced suggested that what was intended was a prolonged visit so as to enable the applicant to earn sufficient money to marry in her own country.

Mr. Alan Howarth

No Opposition Member is arguing that the forms of abuse that the Minister has so recently illustrated should be condoned or that the law should be amended to enable such practices to occur.

I take up the Minister's argument that he cannot accept the amendments because they are unrealistic and impracticable. Will he comment on the fact that Australia, Canada, Denmark, Finland, the Netherlands, Norway, New Zealand, Spain, Sweden and South Africa all include provision for lesbian and gay relationships in their immigration rules and accept the concept of the interdependent partner, in whatever language those countries choose to use? If they find it feasible, what is the Minister's objection in principle?

Mr. Kirkhope

The hon. Gentleman must realise that we use as the basis for our immigration rules in these cases the institution of marriage—in other words, the fact that there is a marriage. It does not necessarily have always to be a United Kingdom marriage, but a marriage that is legitimate in all respects in the country where it was celebrated. We see no reason to change that position.

It was argued throughout consideration of the Bill in Committee that in our immigration rules and regulations we should look for clarity. Our proposals and my remarks this evening underline our commitment to clarity and to avoidance of doubt and misunderstanding.

Mr. Straw

I take up a separate but important issue. The Minister has said that the rules allow for settlement in appropriate circumstances of people who are already married or who are coming here to be married as fiancés or fiancées. Will he make it clear that nothing in the changes that he has announced is intended to discriminate against people who are fiancés or fiancées with the intention of marriage?

In my constituency there is a view—I try constantly to disabuse my constituents of it—that it is necessary to marry before application for settlement has been accepted so as to facilitate that application. That often leads to an application for good reasons being rejected and the woman having to remain married.

Mr. Kirkhope

I assure the hon. Gentleman that we intend to continue the arrangement that couples should be married or that there should be a fiancé or fiancée involved, with an intention to marry in the near future.

6.15 pm
Mrs. Maria Fyfe (Glasgow, Maryhill)

If a woman is seeking entry into the United Kingdom and she says, "I have proof that I have had a common-law relationship with Mr. X for several years", it seems that no attention will be paid to her assertion. If, however, she says, "I am engaged to Mr. X and here is my engagement ring", it seems that that will be all right. That does not make sense to me.

Mr. Kirkhope

We have made it clear that we accept the status of a fiancé or a fiancée if that is what she or he is shown to be. As I have said, marriage is the institution which we recognise in these circumstances. It provides the only safe way, and international way, in which we can deal fairly with these matters.

Amendment No. 19 provides for the inclusion in the Immigration Act 1971 of one of several concessions, which exist outside the immigration rules, allowing people to come to the United Kingdom for various types of employment. As such, the concession sought is already covered by the reference in section 1(4) of the 1971 Act to persons coming for the purpose of taking employment". It would be impractical to itemise all the existing concessions in section 1(4) as many are already covered by the categories listed—for example academic visitors, voluntary workers and the lawyers' concession all come under the heading of "taking employment". It would be illogical to mention one concession, such as domestic workers, without referring to all the others. The inclusion of existing concessions in the rules, such as domestic workers, is a separate matter and one that is still under consideration. Therefore, amendments Nos. 19 and 29 are unnecessary.

Mr. Gerrard

I am extremely disappointed with the Minister's remarks and I much regret what he appears to be doing. We shall need to read the official record carefully. My impression is that he is making things considerably worse for both heterosexual and homosexual couples. He has talked of cases where evidence was found to show that there was not a relationship and that people were not genuinely living together. That would apply equally to marriages of convenience, which we all know occur. If evidence turns up that a marriage is not genuine or that a couple who are supposedly living together are not, those situations can be dealt with. It does not matter whether it is a common law relationship.

I take the point made by my hon. Friend the Member for Newcastle upon Tyne, North (Mr. Henderson) that there is a need to consider the detail of the amendments and whether technically they would work, especially having heard the Minister's remarks. We might need to think about alternative amendments to be tabled and introduced in another place. Having said that, I do not wish to press amendment No. 1 to a Division.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 49, in page 8, line 30, leave out 'In subsection (4) of section 33 of the 1971 Act (pending appeals),' and insert (1) In subsection (1) of section 33 of the 1971 Act (interpretation), for the definitions of "entrant" and "illegal entrant" there shall be substituted the following definitions—

  1. "'entrant' means a person entering or seeking to enter the United Kingdom and 'illegal entrant' means a person—
    1. (a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
    2. (b) entering or seeking to enter by means which include deception by another person,
  2. and includes also a person who has entered as mentioned in paragraph (a) or (b) above;".
(2) In subsection (4) of that section,'.—[Mr. Kirkhope.]

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