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Brighton hosts its 1,000th civil partnership

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  1. Omar Kuddus 3 Jan 2008, 9:29pm

    Regarding the recent comments and disinformation being given by certain individuals in the comments section of the PinkNews.co.uk I think its appropriate to put the situation right and clear the confusion that effects several gay proposed civil partnerships in the UK, through the need of Certificates of Approvals.So am submitting the following to clear matters up as the last thing potential gay asylum seekers and their British /EU partners need in the UK is to be given the wrong information.Certificate of Approval for Civil PartnershipsIn February 2005 the UK Home Office introduced a controversial scheme under which it was necessary for some couples to obtain a Certificate of Approval (CoA) from the Home Secretary before marrying or entering into a civil partnership in the UK. Under this scheme, the requirement to obtain a Certificate of Approval applied when at least one partner was not British or settled in the UK and not a national of a member State of the European Union (EU).The scheme was challenged in a group of cases known as Baiai [2007] EWCA Civ 478. On 23 May 2007 the UK Court of Appeal gave its judgment in this case. The UK Home Office LOST.The challenge in Baiai relied on article 12 of the European Convention on Human Rights (ECHR), the right to marry. The Court of Appeal held that the scheme was unlawful because it was inconsistent with article 12, saying:’…the Secretary of State can only interfere with the exercise of article 12 rights in cases that involve, or very likely involve, sham marriages entered into with the object of improving the immigration status of one of the parties. To be proportionate, a scheme to achieve that end must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control. …the scheme in issue in this case does not pass that test.’ Mr Baiai had no lawful leave to be in the UK. The Court held that preventing him from marrying was still unlawful, saying:‘There may well be good grounds for saying that when a person should not be in this country at all, even on a temporary basis, it would be reasonable and proportionate to prevent him from using the access to article 12 that that physical presence gives him in order to improve his immigration position. But that is not the basis on which the Secretary of State rested his refusal of Mr Baiai’s application. The only right that he claimed to interfere with Mr Baiai’s intended marriage was, and had to be, based on the scheme. The objection inherent in the scheme, that it inhibits marriages on grounds of immigration status rather than by a reliable consideration of the genuineness of the marriage, applies just as much in the case of an illegal entrant such as Mr Baiai as in the case of persons with very limited permission to be here…’.As of 23 May 2007, the Certificate of Approval scheme is unlawful. The Home Secretary of the UK Home Office is reported to be considering trying to appeal the decision to the UK House of Lords and applied and was given permission to do so on the 26th July 2007.The House of Lords Judiciary Office Manager, Nick Cross, informs me that at the moment there is no date set for a hearing and that at the end of February they may have some news as to when this may be. There is more than way in which the House of Lords that could be involved, as The House of Lords is the name of the highest court in the UK. It is also the name of a bigger unit, the second chamber of the UK parliament.A new proposal for immigration legislation in the UK, the UK Borders Bill, is currently before the UK parliament and It will soon be considered by the second chamber of that parliament, the House of Lords. Given that the court in Baiai said that ‘there might be the possibility of dealing with cases such as that of Mr Baiai under differently formulated legislation’, there is a possibility that the UK government will try to make changes to the UK Borders Bill to make it unlawful for people with no lawful leave to be in the UK to marry in the UK or make other changes to address the decision of the Court of Appeal in Baiai, though until the Secretary of state actually puts in the appeal to the House of Lords , it is uncertain what is actually going to be their case.. The Secretary of State’s declared purpose in setting up the Certificate of Approval regime was to prevent marriages that did not reflect genuine relationships, but were entered into to secure an immigration advantage: the right to stay in the UK. Certificate of Approvals however went further than laws that prohibit people from deriving an immigration advantage from a marriage or civil partnership; it prevented them from entering into the marriage or civil partnership in the first place.Where laws prevent a couple from entering into a genuine marriage or civil partnership, this has implications for their religious, cultural and social life that range far beyond immigration and thus engage article 12 of the European Convention on Rights.The Court of Appeal held that the right to marry is an important and fundamental right. It is not absolute: it recognises and supports national laws that ensure that marriages are proper. Nor does it confer a right to marry in any particular country, in this case the UK rather than a country outside the European Economic Area (EEA). The Court of Appeal did not mention civil partnerships as Article 12 of the ECHR specifically protects the right to marry and makes no mention of civil partnerships. To date the Home Office has never applied separate regimes to marriages and civil partnerships and when the High Court, the court below the Court of Appeal, first decided against it in Baiai, it changed the regime for Certificates of Approval for marriages and civil partnerships.It had also been argued in the case that the Certificate of Approval regime was contrary to article 14 of the ECHR, which prohibits discrimination in the application of any of the articles of the ECHR. Marriages in the Anglican Church (the Church of England) were exempt from the Certificate of Approval regime, unlike marriages performed according to the rites of other faiths, and those with no religious element at all. This, it was argued in Baiai, constituted discrimination on the grounds of religion. While agreeing that the exemption made the scheme discriminatory against those who married other than in an Anglican church, the Court of Appeal held that this was ‘essentially a footnote to the scheme as a whole’A scheme they found, as a whole, to be unlawful. If the Home Secretary decides to introduce a new regime, it may be that the exemption for marriages in the Anglican Church would not be a part of it.People who have been refused a Certificate of Approval in the past, and / or have been unable to marry or form a civil partnership or otherwise disadvantaged because of this requirement, will be greatly encouraged by the judgment and should consider taking legal advice about their current situation. It should also be noted that the judgment given in the Supreme Court of Judicature, Court of Appeals (Civil Division) was handed down by THREE LORD JUSTICES; Lord Justice Buxton and unanimously agreed by Lord Justice Lloyd and Lord Justice Waller (Vice-President of the Court of Appeal (Civil Division).

  2. Dave-of-Brighton 4 Jan 2008, 12:35am

    Yep, Brighton has had it’s 1000th Civil Partnership ceremony. The main thing for me though is that gay and lesbian people are integrated into the fabric of this city as equal citizens. The leader of the city council is an out gay man, there are many gay/lesbian police and community support officers, the local NHS actively meets the specific health needs of the gay and lesbian community…and loads of bars, clubs, social groups for the gay community. Oh, and we have the best gay pride Brighton and Hove… I love it.

  3. OMAR KUDDUS 19 Jan 2008, 3:58pm

    To those who have wished us well and even those who think I am “someone whose boyfriend is supposedly facing extradition it would appear largely to his own belligerence and lack of respect for British law and the immigration system”.I would like to bring to your attention: Mark Durkan MP, Foyle, Leader of the SDLP on the 7.1.08 introduced the Early Day Motion, 626, RIGHT TO MARRY IN THE UK.Early Day Motion (EDM) is a colloquial term for a notice given by a Member for which no date has been fixed for debate.To date, EDM 626 RIGHT TO MARRY IN THE UK, has had 20 Signatures added to the Motion.The EDM, RIGHT TO MARRY IN THE UK, states;“ That this House expresses concern at the Home Office Certificate of Approval scheme which provides that only those immigrants seeking to marry at an Anglican church in England or Wales are exempt from the scheme; considers the requirement of permission to marry in the UK for immigrant members of other religions, or no religion, or in other parts of the UK, not only to be discriminatory but to be a violation of Articles 8, 9 and 12 of the European Convention of Human Rights; notes that this questionable scheme applies to immigrants regardless of the fact that they may be in the UK lawfully as recognised refugees or foreign students and cannot in any case obtain any immigration advantage by marrying; recognises the Court of Appeal decision in the case of Baiai and Others that the Home Office Certificate of Approval scheme is unlawful; regrets that the Home Office has since raised the fee for Certificate of Approval applications to £295 per person; and calls on the Home Office to rescind this scheme.” Mark was elected Party Leader in November 2001 and became Deputy First Minister of the Northern Ireland Assembly in December 2001. In November 2003 he was re elected to the Northern Ireland Assembly, topping the poll in Foyle. His Contacts Details: 23 Bishop Street, Derry City, Co Derry, BT48 6PR. Fax:028 7136 0808 m.durkan@sdlp. ieIt is requested that you please urge your own MP to support the Bill, by emailing him details of it, as this matter effects lots of Gay couples and in the end can lead to an more equal society.Another example that a single person can make difference, and that the laws of this land are not cast in stone, but open to be challenged and as individuals we can make a difference, for the community and society we live in.For a rolling stone gathers no moss.

  4. Sister Mary Clarence 19 Jan 2008, 7:34pm

    Of course as you well know (and unfortunately for your boyfriend) this isn’t really any help to you (or him), as the initial problem you face is allowing your boyfriend to stay in the UK, when his applications have already been rejected (for reasons we are not aware of).It will potentially however help those couples who have not had an application to remain in the UK rejected and who wish to marry or enter into a civil partnership.It would appear Omar that this is a further attempt to mislead, or at best muddy the waters.Your situation is more complex in that the only reason your partner is still here after being told he must leave is because of a failing with the immigration system that means we do not ensure failed applicants are ejected.This is good news for gay and straight, whole or part migrant, couples and you could have presented it as such. However it offers no comfort, as best I can see, to failed asylum seekers attempting to marry or enter into civil partnerships.If this is the manner in which you present ‘facts’ to the Home Office it is precious little wonder your unfortunately boyfriend is in the situation he is. Your boyfriend will very clearly “obtain any immigration advantage by marrying” whether intentionally or by accident and the EDM very clearly mentions this caveat. Please credit at least a few of us on here with the ability to read and for the sake of your boyfriend please learn to tell things straight. You are a fool to yourself, distorting the truth will only heighten the Home Office’s suspicion.

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