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Removal of married lesbians to India not a flagrant violation of family life

Removal of married lesbians to India not a flagrant violation of family life

The Court of Appeal has held that the removal of married lesbians to India would not be a flagrant violation of their family life. Paragraph 7 sums up the issues:

The FTT found that the appellants would continue to live together as a couple in India and could not be prevented from doing so there, even if they could not have as open a lifestyle as they did in the UK or enjoy a status having legal recognition, such as a civil partnership, under Indian law. Whilst the FTT accepted that the appellants shared family life with each other, it decided that their removal would not have such an effect on their family life as even to engage article 8; it also held that the interference with their family life was in accordance with law and necessary in the interests of the economic well-being of the country and that such interference would not be disproportionate.

The Upper Tribunal held that there was no error of law in these findings and the Court of Appeal agrees. Giving the leading judgment Gloster LJ accepts that the FTT should have, in line with Oliari, have recognised the “momentous” right to legal recognition and protection of the relationship but that this was not material to the final outcome (para 52). See also AR and NH (lesbians) (CG) [2016] UKUT 66 (IAC), on which the Court of Appeal relies.

Source: SB (India) and CB (India) v Secretary of State for the Home Department [2016] EWCA Civ 451 (12 May 2016)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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