LGBT History month: LGBTQ+ matters in UK immigration law

In recognition of LGBT History Month in February (and following a recent article from our Employment team about protecting LGBTQ+ rights in the workplace), this article sets out the history of how the rights of LGBTQ+ couples and individuals have developed in UK immigration law over the last 30 years. We have also outlined some of the immigration routes and the challenges faced when making visa applications on the basis of same-sex relationships and in making asylum claims on the basis of sexual identity.

Recognition of same-sex relationships for UK partner visas

The UK Immigration Rules allow same-sex partners of British citizens and of those who are settled in the UK to make family visa applications. Same-sex partners of certain other visa holders, such as Skilled Workers, can also apply for Dependent Partner visas on the basis of their relationship, regardless of the gender or sexual identity of the couple. However, the law did not always recognise LGBTQ+ relationships in this way.

On 10 October 1997, the Government passed the “Unmarried Partners Concession”, recognising same-sex relationships for immigration purposes for the first time. Prior to this, same-sex couples (who could not marry under UK law) were prevented from making partner visa applications on the basis of their relationships. The hard-won concession in 1997 granted all couples, including same-sex couples, permission to apply for a partner visa if they could demonstrate four years of cohabitation. It was the very first legal recognition of lesbian and gay couples in British law and was therefore a significant landmark in the evolution of LGBTQ+ rights in the UK.

In June 1999, the cohabitation period for all unmarried couples was reduced to two years, and in October 2000, same-sex relationships were formally recognised in the UK’s Immigration Rules for the first time.

More recently, following changes in the law with the passing of the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013, same-sex couples became legally entitled to enter into civil partnerships and to marry in 2005 and 2014, respectively. Happily, civil partnerships and marriage are treated equally for UK immigration purposes, and so these changes in the law ensured that same-sex couples now have the same rights as opposite-sex couples when it comes to obtaining family visas and living in the UK together.

Partner visa applications for LGBTQ+ couples under UK law now

Currently, the Immigration Rules define a “partner” as a spouse, civil partner, fiancé(e) or proposed civil partner, or unmarried partner where the couple has been in a relationship akin to a marriage or civil partnership for at least two years. It remains the case that if a couple is not married or in a civil partnership, the Home Office will normally expect to see that they have lived together for at least two years, although there can be some flexibility in this in certain circumstances.

Whilst the requirements are now equalised for same-sex and opposite-sex couples in law, in practice, there are still many people in the LGBTQ+ community across the world who cannot marry or live together without serious concerns for their safety. We welcome the Home Office’s acknowledgment in one of their (many) policy guidance documents that:

In some countries unmarried partners cannot live together and [the caseworker] will need to assess whether the relationship is similar to a marriage or civil partnership, in that it is more than a boyfriend / girlfriend type relationship. In some countries same-sex relationships might not be recognised or accepted by the society, which in turn might make it difficult or even impossible for same-sex partners to cohabit.

Same-sex couples in this position will need to consider their applications carefully and ensure they submit enough evidence to satisfy the Home Office of the genuineness of their relationship, and that any cultural sensitivities are carefully explained in the visa application and dealt with upfront. Our Immigration team has assisted many same-sex couples in applying for UK partner visas from countries where LGBTQ+ persons face discrimination or persecution and we understand the importance of handling these matters in a sensitive manner and, where necessary, putting safeguards in place to ensure information about the couple’s relationship is only shared on a need-to-know basis in their country of origin.

Asylum claims on the basis of sexual identity

Whilst the legal rights of LGBTQ+ people in the UK have improved considerably in recent decades, it is the case that LGBTQ+ persons continue to face persecution in many countries around the world. For example, same-sex sexual activity is currently criminalised in 65 jurisdictions and punishable by death in 12.

Where a person has a well-founded fear of persecution on the basis of their sexual identity or gender identity, they may be able to claim asylum under the 1951 Refugee Convention. According to the Home Office’s most recent published statistics, only 2 per cent of asylum applications in 2022 were “LGB claims”, and an average of 546 people each year are granted refugee status on this basis in the UK.

There have been several interesting legal developments in this area, perhaps reflecting wider societal changes in attitudes towards the LGBTQ+ community. Prior to 2010, the Home Office’s policy was to refuse asylum claims on the basis of sexual identity if it was deemed that the applicant could avoid persecution in their country of origin by living “discreetly”, ie by hiding their sexual identity.

However, in the 2010 landmark case of HJ (Iran) v Secretary of State for the Home Department, the Supreme Court ruled that this policy was unlawful and a breach of human rights, stating that:

to compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.

In essence, the Supreme Court held that to be forced to hide one’s sexual identity on account of a fear of persecution, would in itself amount to persecution.

Whilst the UK Home Office has the ability to grant people refugee status on the basis of their sexual identity, these are complex applications to evidence, with approximately a quarter of such asylum claims having been refused in recent years. It is therefore essential that applicants obtain specialist legal advice and ensure that their claims are well-prepared. In particular, a detailed witness statement setting out the applicant’s testimony is extremely important, and will need to address their identity and experiences as an LGBTQ+ person, their fear of persecution, and why they would not be safe if they were to return to their country. It is also essential to have objective evidence of the risk of return.

If any of the issues in this article affect you and you would like further advice on your UK immigration options, please contact Sonia Cala-Lesina or Anjana Daniel in our Immigration team who would be happy to help.

With special thanks to Pia Robins, a current paralegal in the Immigration team, for their help with this briefing.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2024