Friday, 26 February 2016

Sexual orientation discrimination in immigration law violates ECHR - Pajić v Croatia

The Second Section of the European Court of Human Rights has issued a significant judgment in Pajić v Croatia, upholding a complaint about sexual orientation discrimination in immigration law. 

The complaint was brought by Danka Pajić from Brčko (Bosnia and Herzegovina) who was denied a residence permit to live in Croatia with her same-sex partner. The principle issue was, as the Court stated, that domestic law 'provided for a blanket exclusion of persons living in a same-sex relationship from the possibility of obtaining family reunification'.

The Court unanimously upheld Ms. Pajić's complaint that the blanket exclusion of same-sex couples from provisions available to unmarried opposite-sex couples amounted to a violation of Article 14 taken in conjunction with Article 8 of the Convention. This is extremely significant because it extends the protection of the Convention to bi-national same-sex couples who are treated less favourably than opposite-sex couples by immigration law. The Court was absolutely clear that the 'equality requirement' of Article 14 'holds true in [...] immigration cases'. 

This is in stark (and welcome) contrast to the decisions that the Strasbourg organs used to issue when they would routinely declare that, in respect of immigration rules that gave 'priority and better guarantees to traditional established families, rather than other established relationships like a lesbian partnership', there was 'no element of discrimination, contrary to Article 14 of the Convention, in such a policy, given the special protection to be afforded to the traditional family' (C. and L.M. v. the United Kingdom).

The Court has consolidated its recent jurisprudence in Kozak v Poland and E.B. v France into a succinct phrase which captures its approach to considering sexual orientation discrimination under Article 14 taken in conjunction with Article 8:

"...a difference in treatment based solely or decisively on considerations regarding the applicant’s sexual orientation would amount to a distinction which is not acceptable under the Convention".

Now, if only the Court would apply this principle when considering complaints under Article 14 taken in conjunction with Article 12 about discrimination in marriage...



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