European court: gay couples must be granted residency permits

European Court of Human Rights
European Court of Human Rights

The European Court of Human Rights (ECHR) ruled that a refusal by Italy to grant residency right to one partner in a same-sex couple is illegal.

The ruling will now affect all countries signatory to the European Convention on Human Rights and members of the Council of Europe.

ECHR ruled in Taddeucci and McCall v Italy, that the refusal to grant one partner in a same-sex couple a residence permit violated their rights under the European Convention on Human Rights, particularly Article 14, prohibition of discrimination, taken with Article 8, respect for family life.

European Court of Human Rights
European Court of Human Rights

The case got to the Court when Italian authorities and courts refused the application for residence on family grounds of Mr McCall, a New Zealand national, arguing they were not ‘spouses’ under Italian law.

The Court noted that the refusal to grant Mr McCall a residence permit had meant that he was legally obliged to leave Italy. That fact had prevented the couple from continuing to live together in Italy and violating respect for family life, as guaranteed by Article 8.

The Court also pointed out that the situation of the couple could not be understood as comparable to that of an unmarried heterosexual couple, as there was no way to obtain any other form of legal recognition of their situation in Italy. At the time of the application Italy did not yet have civil union legislation.

Commenting on the ruling, Sophie in ‘t Veld MEP, Vice-President of the Intergroup on LGBTI Rights, said: “While for Italy this ruling does not mean a big change anymore now that they’ve adopted civil union law, I believe this ruling sets a tremendously important precedent.”

“It means that all countries in the Council of Europe, from Norway to Azerbaijan and from Portugal to Finland have to ensure that international same-sex couples rights to a residency permit.”

Countries signatory to ECHR
Council of Europe members and signatory to ECHR

“It is now time for the Commission and Member States to take their responsibility and set a long overdue EU framework for mutual recognition of civil status documents, including rights attached to marriage and registered partnerships, as called for by Parliament repeatedly. They cannot turn a blind eye, and leave it to the courts to compensate for their lack of courage. We urge the Commission to put forward proposals as soon as possible.”

Daniele Viotti MEP, Co-President of the Intergroup on LGBTI Rights, reacted: “The case of this couple illustrates very practically what kind of discriminatory barriers same-sex couples run into in Europe. Simply receiving a residence permit allowing you to be with your loved one, was made impossible and has indeed forced them to leave Italy over its refusal to recognise their right to family life.”

“In this regard I strongly welcome the Court’s ruling which confirms that everyone has the right to be with the one they love, irrespective of whether it concerns a same-sex couple or an opposite-sex couple.”

Last year ECHR ordered Italy to legalise same-sex unions.

ECHR rulings have transformed British laws to become more equal and removed anti-LGBTI legislations, including:

  • Trans pension rights in the case Grant v UK, 2006
  • Removing the ban on gay people serving in the armed forces, Lustig-Prean & Smith v UK 2000
  • Equalising the age of consent of gay people, Sutherland v UK, 1997
  • Introduction of gender recognition into UK law, Goodwin v UK 2002
  • Decriminalisation of same-sex acts in Northern Ireland, Dudgeon v UK, 1981
  • Lifting a ban on sex between more than two men as a breach of the right to privacy ADT v UK, 2000.
  • Giving same-sex couples tenancy rights, Mendoza v Ghaidan 2004 (based on previous ECHR 1999 ruling)

However, the Conservative government and its leading candidates to the next Prime Minister of the UK want to either scrap ECHR ruling from British law or weaken them.

Nicola Sturgeon, First Minister of Scotland, said that Scotland will oppose any move to remove ECHR rulings or European Convention on Human Rights from British legislations.

 

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