SB (India) and CB (India) v Secretary of State for the Home Department

Article 8 of the Convention provides as follow:

Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The decision of the House of Lords in Razgar established that, on an appeal against a decision to remove by the Secretary of State on article 8 grounds, the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. Lord Bingham (Footnote: ²) defined these as follows at paragraph 17 of his opinion:

“17.

In a case where removal is resisted in reliance on article 8, these questions are likely to be:

(1)

Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)

If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)

If so, is such interference in accordance with the law?

(4)

If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)

If so, is such interference proportionate to the legitimate public end sought to be achieved?"

Razgar was not a “foreign case”, i.e. a case

“in which it is not claimed that the state complained of has violated or will violate the applicant’s Convention rights within its own territory, but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights that other territory;”

see per Lord Bingham at paragraph 9 of his opinion in Ullah (Footnote: ³). In paragraphs 41 to 43 and 65 of her opinion in Razgar, Baroness Hale explained how the “gravity” test, as articulated in the second Razgar question, came into play in a part foreign, part domestic case, in the context of the proportionality exercise. Her comments are also instructive as to the stringency of the test in a foreign case, and the reasons for it. She said:

“41.

In his opinion in the cases of Ullah and Do, my noble and learned friend, Lord Bingham of Cornhill, draws a distinction between 'domestic cases' and 'foreign cases'. He defines the former as cases 'where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory' (paragraph 7). He defines the latter as cases 'in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory' (paragraph 9). Another way of putting this distinction is that in domestic cases the contracting state is directly responsible, because of its own act or omission, for the breach of Convention rights. In foreign cases, the contracting state is not directly responsible: its responsibility is engaged because of the real risk that its conduct in expelling the person will lead to a gross invasion of his most fundamental human rights. Ullah and Do were foreign cases which failed to meet that test. ”

42.

The distinction is vital to the present case. In a domestic case, the state must always act in a way which is compatible with the Convention rights. There is no threshold test related to the seriousness of the violation or the importance of the right involved. Foreign cases, on the other hand, represent an exception to the general rule that a state is only responsible for what goes on within its own territory or control. The Strasbourg court clearly regards them as exceptional. It has retained the flexibility to consider violations of articles other than articles 2 and 3 but it has not so far encountered another case which was sufficiently serious to justify imposing upon the contracting state the obligation to retain or make alternative provision for a person who would otherwise have no right to remain within its territory. For the same reason, the Strasbourg court has not yet explored the test for imposing this obligation in any detail. But there clearly is some additional threshold test indicating the enormity of the violation to which the person is likely to be exposed if returned. Ullah and Do on their facts came nowhere near meeting that test. It is, for the reasons given both by Lord Bingham and Lord Steyn, extremely unlikely that a failure to respect religious freedom which fell short of persecution within the meaning of the Refugee Convention would do so.

43.

This case, however, is concerned with article 8. In that context, Lord Bingham also refers to a third or hybrid category. Here 'the removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B' (paragraph 18). On analysis, however, such cases remain domestic cases. There is no threshold test of enormity or humanitarian affront. But the right to respect for private and family life, home and correspondence, which is protected by article 8, is a qualified right which may be interfered with if this is necessary in order to pursue a legitimate aim. What may happen in the foreign country is therefore relevant to the proportionality of the proposed expulsion.

……

65.

For those reasons, I would hold that the Secretary of State was entitled to reach the conclusion he did on the material before him and would therefore allow this appeal. I appreciate that this may seem a harsh conclusion to draw. But this is a field in which harsh decisions sometimes have to be made. People have to be returned to situations which we would find appalling. The United Kingdom is not required to keep people here who have no right to be here unless to expel them would be a breach of its international obligations. It does the cause of human rights no favours to stretch those obligations further than they can properly go. In my view, those obligations are not such as to require the United Kingdom to refrain from returning Mr Razgar to Germany in accordance with the Dublin Convention.”

The approach to be taken by the courts in assessing an alleged breach of article 8 in a foreign case has been the subject of two decisions of the House of Lords: Ullah and EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198.

In Ullah the matters giving rise to the claim to remain in the UK did not amount to persecution (Footnote: ⁴), but were alleged to amount to a breach of article 9 and the right to freedom of religion. The point of principle which the House of Lords was called upon to determine was whether a claim under article 9 could be made at all, when there was no claim which could be made under article 3. Following comments made in a number of Strasbourg judgments to the effect that there was an obligation to protect against breach of qualified rights in foreign cases, the House of Lords answered that question in the affirmative. That issue is not in contention in the present case.

As Lord Bingham (Footnote: ⁵) also made clear, successful reliance in a foreign case on articles other than article 3 demands presentation of a very strong case:

“24.

While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty". Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113 (see paragraph 10 above); Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown (Footnote: ⁶). This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111:

"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case - where the right will be completely denied or nullified in the destination country - that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state".

The reason why there is a requirement for a stringent test was also underlined by Lord Carswell at paragraph 63 of his opinion in Ullah where he said:

“I do regard it as important, however, that member states should not attempt to impose Convention standards on other countries by decisions which have the effect of requiring adherence to those standards in those countries.”

As Miss Broadfoot submitted, and as I accept, it is at the point of the court’s determination whether article 8 is even engaged that the flagrant denial or gross violation test is invoked. In Razgar Lord Bingham explained the second question, namely whether an identified interference with article 8 is of such gravity as potentially to engage the operation of article 8, in the following terms:

“18... Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention... “

Importantly, the judgments make clear that the assessment of the severity of the treatment in the receiving state does not depend on an assessment of the relative protection afforded to rights in the receiving state as compared with the protection afforded in the removing state. Thus Lord Bingham said at paragraph 4 of his opinion in Razgar:

“… removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the removing country than in that to which the applicant is to be removed. This was made plain in D v United Kingdom (1997) 24 EHRR 423, paragraph 54. Although the decision in Henao is directed to article 3, I have no doubt that the Court would adopt the same approach to an application based on article 8. It would indeed frustrate the proper and necessary object of immigration control in the more advanced member states of the Council of Europe if illegal entrants requiring medical treatment could not, save in exceptional cases, be removed to the less developed countries of the world where comparable medical facilities were not available. I do not understand the Court of Appeal to have proposed a test based on relative standards of treatment … If there is any doubt on this point, it should be dispelled. The Convention is directed to the protection of fundamental human rights, not the conferment of individual advantages or benefits.”

Likewise Baroness Hale said at paragraph 59

“Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under article 3 but succeed under article 8. There clearly must be a strong case before the article is even engaged and then a fair balance must be struck under article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over the legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain

In EM (Lebanon) the issue was whether article 8 could be relied upon in circumstances where the return of a mother and child to Lebanon would result in their separation, because Lebanese law required the child to be placed into the custody of his father notwithstanding that he had spent all of his life with his mother. It was argued both that this separation would amount to a flagrant denial of EM and her child’s family life, but also that the family law in Lebanon was arbitrary and discriminatory and so fell foul of both article 8 and article 14.

The House of Lords held that, on the particular facts, the separation of EM and her child would amount to a flagrant denial of their family life. However, it rejected the arguments addressed to the discriminatory effect of Lebanese family law per se. The headnote is instructive. It reads as follows:

“Held, allowing the appeal, that article 8 of the Convention would not be engaged in relation to the removal of an alien from a contracting state unless the treatment which she would receive in the destination state would amount to a flagrant breach of article 8 such as would completely deny or nullify the very essence of the right to respect for her private and family life; that there was no pre-determined model of family or family life to which the article had to be applied, but it required respect to be shown for the right to such family life as was or might be enjoyed by the particular applicant bearing in mind the participation of other members who shared in it; that since the claimant and her child had constituted a family for the entirety of the child’s life, without any contact with the father or his family, and since any contact between the claimant and her child after return would be limited to occasional supervised visits, the effect of return would be to destroy the family life of the claimant and her child as it was now lived, particularly when the effects on the child were taken into account; and that, accordingly, in those exceptional circumstances article 8 of the Convention precluded the claimant’s removal …….R (Ullah) v Special Adjudicator [2004] 2 AC 323, HL(E) and dicta of Judges Bratza, Bonello and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, 537–539, GC applied.

Per Lord Hope of Craighead, Lord Bingham of Cornhill, Lord Carswell and Lord Brown of Eaton-under Heywood. Although it is plain that the arbitrary and discriminatory character of the family law applied in Lebanon would fall foul of both article 8 and article 14, Lebanon is not a party to the Convention and the United Kingdom has no general mandate to impose its own values on other countries who do not share them. It is doubtful whether it would have availed the claimant to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown that return to Lebanon would flagrantly violate her and the child’s right to respect for their family life together. The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14…….. .Decision of the Court of Appeal [2006] EWCA Civ 1531; [2007] 1 FLR 991 reversed. “

The following comments of their Lordships in relation to the impact of the discriminatory nature of the law in the foreign state are particularly relevant to the present appeal. Thus Lord Hope, drawing an analogy with the article 3 medical cases, said:

“7.

It seems to me that the Strasbourg court’s jurisprudence indicates that, in the absence of very exceptional circumstances, aliens cannot claim any entitlement under the Convention to remain here to escape from the discriminatory effects of the system of family law in their country of origin. There is a close analogy between this case and N v United Kingdom (Application No 26565/05) (unreported) 27 May 2008 which followed the decision of this House in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] 2 AC 296.

...

10.

That was a case about article 3, not one of the qualified Convention rights. Yet even in such a case, where there was a very real risk that the harm that would result from the applicant’s expulsion to the inferior system of health care in her country of origin would reach the severity of treatment prescribed by that article, the court held that, other than in very exceptional cases, there was no obligation under the Convention to allow her to remain here. This was because it was not the intention of the Convention to provide protection against disparities in social and economic rights. To hold otherwise, even in an article 3 case, would place too great a burden on the Contracting States. Similar observations about the limits that must be set on practical grounds to the qualified obligations that they have undertaken in the area of civil and political rights are to be found in F v United Kingdom (Application No 17341/03) (unreported) 22 June 2004 and Z and T v United Kingdom (Application No 27034/05) (unreported) 28 February 2006. These decisions were not available to the House when it was considering the cases of Ullah [2004] 2 AC 323 and Razgar [2004] 2 AC 368, the judgments in which were delivered on 17 June 2004.

11.

In F v United Kingdom the applicant was an Iranian citizen who had claimed asylum here on the basis that he feared persecution as a homosexual. His application for asylum was rejected. But he claimed that there would be a breach of article 8 if he were to be removed to Iran because a law in that country prohibited adult consensual homosexual activity. His application was declared inadmissible by the Strasbourg court. At p 12 of its decision the court observed that its case law had found responsibility attaching to Contracting States in respect of expelling persons who were at risk of treatment contrary to articles 2 and 3 of the Convention. It said that this was based on the fundamental importance of these provisions, whose guarantees it was imperative to render effective in practice: Soering v United Kingdom (1989) 11 EHRR 439, para 88. But it went on to say this:

‘Such compelling considerations do not automatically apply under the other provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention.

……

14.

As this case shows, the principle that men and women have equal rights is not universally recognised. Lebanon is by no means the only state which has declined to subscribe to article 16(d) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 which declares that States Parties shall ensure, on a basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in all matters relating to their children and that in all cases the interests of the children shall be paramount. For the time being that declaration remains in most, if not all, Islamic states at best an aspiration, not a reality. As the court said in Soering, para 91, there is no question of adjudicating on or establishing the responsibility of the receiving state, whether under general international law, under the Convention or otherwise. Everything depends on the extent to which responsibility can be placed on the Contracting States. But they did not undertake to guarantee to men and women throughout the world the enjoyment without discrimination of the rights set out in the Convention or in any other international human rights instrument. Nor did they undertake to alleviate religious and cultural differences between their own laws and the family law of an alien's country of origin, however extreme their effects might seem to be on a family relationship.

15.

The guidance that is to be found in these decisions indicates that the Strasbourg court would be likely to hold that, except in wholly exceptional circumstances, aliens who are subject to expulsion cannot claim an entitlement to remain in the territory of a Contracting State in order to benefit from the equality of treatment as to respect for their family life that they would receive there which would be denied to them in the receiving state. The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere. So the inevitable result under Shari'a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention.’”

Thus, as Lord Hope said at paragraphs 14 - 15, quoted above, there is no obligation on member states bound by the Convention to guarantee to citizens of foreign non-member states, who visit the removing member state, that they will not be removed to their own state, unless that latter state affords them the enjoyment without discrimination of the rights set out in the Convention. That is so even where the other country’s laws may have damaging effects on a family relationship. To similar effect is: Lord Bingham at paragraph 42: “This country has no general mandate to impose its own values on other countries who do not share them”; Lord Carswell at paragraph 52; and Lord Brown at paragraph 60.

This is an important consideration to bear in mind when addressing the arguments presented by Mr Chelvan on the issues in the present case.

Mr Chelvan’s arguments under the appellants’ various grounds of appeal were wide-ranging, and did not focus on the questions which Razgar requires a reviewing court to answer. However, I propose to structure my analysis by reference to those questions.

In relation to the first question, namely whether the proposed removal would be an interference with the exercise of the appellants’ rights to respect for their family life under article 8, the thrust of Mr Chelvan’s criticisms appeared to be that:

I do not accept that these arguments justify allowing an appeal on the first of the appellants’ amended grounds of appeal.

First, Mr Chelvan’s submissions wrongly conflated the first two questions in Razgar; the first Razgar question simply identifies whether removal will result in any interference with article 8, whereas the second question requires it to be demonstrated that the interference is of sufficient gravity to engage article 8. Second, it is clear from its judgment that the FTT accepted that, as a same-sex lesbian couple, the appellants shared family life for the purposes of article 8 and that their removal to India would indeed constitute an interference with those rights. The judge made repeated reference to the appellants’ “family life” and “interference” at paragraphs 17, 22, 23 and 24. Third, the judge clearly had in mind the need to address each of the Razgar questions in turn, since he made an express reference to those questions at paragraph 14. It is perhaps not surprising that the judge did not expressly mention Schalk and Kopf, since that case does not appear to have been referred to – at least in the appellants’ written submissions.

However, the FTT can, in my judgment, be criticised, at least with the benefit of hindsight, in the light of later cases such as Oliari, for not expressly identifying, as an important incident of the appellants’ rights to family life, the right to legal recognition and protection of their relationship.

Oliari was a case where the ECtHR had to decide inter alia in circumstances where two Italian men had no opportunity to enter into a civil union or registered partnership (in the absence of marriage) in Italy, whether Italy, at the date of the analysis of the court in 2015, had failed to comply with a positive obligation to ensure respect for the applicants’ private and family life, in particular through the provision of a legal framework allowing them to have their relationship recognised and protected under domestic law. In deciding that there had indeed been a breach of article 8 on the part of Italy, the ECtHR said:

“185.

In conclusion, in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.”

Paragraphs 163-178 of the court’s judgment emphasize the court’s views as to the importance of legal recognition and protection of same-sex relationships, albeit recognizing that member states retain a margin of appreciation. Reliance was also placed by the court on the developing world-wide picture. I cite by way of illustration paragraphs 174-178:

“174.

In view of the above considerations, the Court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection - in the form of core rights relevant to a couple in a stable and committed relationship - without unnecessary hindrance. Further, the Court has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce (see Vallianatos, cited above, paragraph 81). This recognition would further bring a sense of legitimacy to same-sex couples.

175.

The Court reiterates that in assessing a State’s positive obligations regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Having identified above the individuals’ interests at play, the Court must proceed to weigh them against the community interests.

176.

Nevertheless, in this connection the Court notes that the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole. They however considered that “time was necessarily required to achieve a gradual maturation of a common view of the national community on the recognition of this new form of family”. They also referred to “the different sensitivities on such a delicate and deeply felt social issue” and the search for a “unanimous consent of different currents of thought and feeling, even of religious inspiration, present in society”. At the same time, they categorically denied that the absence of a specific legal framework providing for the recognition and protection of same-sex unions attempted to protect the traditional concept of family, or the morals of society. The Government instead relied on their margin of appreciation in the choice of times and the modes of a specific legal framework, considering that they were better placed to assess the feelings of their community.

177.

As regards the breadth of the margin of appreciation, the Court notes that this is dependent on various factors. While the Court can accept that the subject matter of the present case may be linked to sensitive moral or ethical issues which allow for a wider margin of appreciation in the absence of consensus among member States, it notes that the instant case is not concerned with certain specific “supplementary” (as opposed to core) rights which may or may not arise from such a union and which may be subject to fierce controversy in the light of their sensitive dimension. In this connection the Court has already held that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition and the rights and obligations conferred by such a union or registered partnership (see Schalk and Kopf, cited above, paragraph 108-109). Indeed, the instant case concerns solely the general need for legal recognition and the core protection of the applicants as same-sex couples. The Court considers the latter to be facets of an individual’s existence and identity to which the relevant margin should apply.

178.

In addition to the above, of relevance to the Court’s consideration is also the movement towards legal recognition of same-sex couples which has continued to develop rapidly in Europe since the Court’s judgment in Schalk and Kopf. To date a thin majority of CoE States (twenty-four out of forty-seven, see paragraph 55 above) have already legislated in favour of such recognition and the relevant protection. The same rapid development can be identified globally, with particular reference to countries in the Americas and Australasia (see paragraphs 65 and 135 above). The information available thus goes to show the continuing international movement towards legal recognition, to which the Court cannot but attach some importance (see, mutatis mutandis, Christine Goodwin, paragraph 85, and Vallianatos, paragraph 91, both cited above).”

However, notwithstanding the FTT’s lack of emphasis on the importance of the appellants’ rights to legal recognition and protection of their relationship, it clearly took the absence of such recognition and protection of the appellants’ civil partnership, and its consequences, into account, when it came to consider, in relation to the second Razgar question, whether there had been a flagrant nullification or denial of the appellants’ rights. Whether the FTT afforded sufficient weight to that matter is a question for this court’s determination under that second question.

Accordingly, I reject Mr Chelvan’s submission that the FTT somehow failed to recognise that same-sex couples can fall within the notion of “family life” and for that reason found that article 8 was not engaged. The FTT clearly recognised that the appellants, as a same-sex couple in a civil partnership, had a right to family life. The FTT’s determination that article 8 was not engaged did not relate to this conclusion in relation to the first Razgar question, but rather to the second, i.e., whether it “renders removal to a country of origin where there exists no legal recognition of same-sex relationships disproportionate as it involves a flagrant denial or nullification of the relevant rights: see e.g. paragraph 22 of the judgment. That is the question to which I now turn.

The appellants’ case in relation to the second Razgar question (and indeed the fifth Razgar question), as raised in their second and third grounds of appeal, was in summary that the FTT erred in its determination that their removal would not result in a flagrant denial of their article 8 family life rights because:

It was the first of the above matters which the appellants contended raised an important point of principle for the purposes of this appeal.

I cannot accept Mr Chelvan’s submission that the mere fact that the UK has passed the Civil Partnership Act 2004, the Marriage and Civil Partnership Scotland Act 2014 and the Marriage (Same Sex Couples) Act 2013, recognising its Convention obligations, and in line with “continuing international movement towards legal recognition [of same-sex couples], to which the Court cannot but attach some importance” (Footnote: ⁷), predicates that any removal of a same-sex couple to their country of origin, where legal protection is not afforded to such relationships, necessarily involves a flagrant breach or denial of article 8 rights. The passages which I have cited earlier in this judgment from Razgar, Ullah and EM (Lebanon) make it clear that there is no obligation on member states bound by the Convention to guarantee to citizens of foreign non-member states, who visit the removing member state, that they will not be removed to their own state, unless that latter state affords them the enjoyment - without discrimination - of the rights set out in the Convention. That is so even where the other country’s laws may, for example, have damaging effects on a family relationship or deny equal status to women. That remains the position irrespective of the developing international jurisprudence in many countries recognising the fundamental right of same-sex couples to legal recognition of their status by marriage or civil partnership, of which the decision in Obergefell et al v Hodges (2015) 576 U.S is but one example.

It follows that I do not accept the appellants’ arguments that the absence in India of any legal recognition of, or protection for, their civil partnership, now marital, status, goes to the very essence of their article 8 rights to family life. Family life can and does exist outside legal arrangements that formally recognize relationships. That is confirmed by Schalk and Kopf, at paragraph 94. The fact that, in Convention countries, a married couple or a couple in a civil partnership may enjoy greater rights than those of a cohabiting couple (Footnote: ⁸), does not mean that the absence of formal recognition of marital status necessarily involves a flagrant violation or denial of rights. Nor did I obtain any assistance in this context from Mr Chelvan’s argument that it was necessary to look at a “straight comparator”, in reliance upon Lord Rodger’s dictum in paragraph 76 of HJ (Iran) v Secretary of State [2011] 1 AC 596. One could imagine that a similar situation might well arise in the removal of a married couple to their state of origin, where, for example, the receiving state did not recognise second marriages, or marriages between couples who were of different religions.

In coming to this conclusion I endorse the views expressed to similar effect by the experienced Upper Tribunals in LH and IP (gay men: risk) Sri Lanka (CG) [2015] UKUT 73 (IAC) at paragraphs 120-122; and in AR and NH (lesbians) India (CG) [2016] UKUT 66 (IAC) at paragraph 85. Same-sex couples no doubt have a deep and genuine grievance that, in countries such as India, there is no official recognition of their deeply felt relationship. But, as the Upper Tribunal said in LH and IP (gay men: risk) Sri Lanka (CG), the authorities show that:

“It is a grievance well short of the standard explained in cases such as EM (Lebanon) and SS (Malaysia), that of a flagrant breach of a core human right.”

The question for the FTT was simply whether the lack of recognition in India of civil partnership status amounts, in the circumstances of this case, to a flagrant denial or violation of the appellants’ article 8 family life rights. Each case necessarily depends upon its own facts. In my judgment, the FTT’s conclusion that it was not a flagrant denial or violation, so far as these particular appellants were concerned, principally based upon its finding that the appellants would be able to continue living together as a couple in India, was one which, on the evidence before the court, the FTT was clearly entitled to reach. In summary, the appellants are well-educated women who are able to return to live in Delhi, where the evidence showed that attitudes were much more tolerant of members of the LBGT community. There was no basis for any conclusion on the evidence that they would not be able to find appropriate employment. The judge was entitled to conclude that there was no flagrant denial or violation, notwithstanding what might be said to be his failure to attach what I regard as appropriate significance to the lack of any formal recognition and protection afforded by state-approved marriage or formal civil partnership.

The appellants’ circumstances can be clearly distinguished from the appellants in EM (Lebanon). In that case, it was not the discriminatory legal system that resulted in a finding of flagrant denial of human rights, but rather the exceptional circumstances involving the potential separation of EM from her child, thereby rupturing the only family relationship ever known to the child, who had had no contact with his father. By way of contrast, the appellants’ complaint in this appeal is not directed at laws which will bring about their separation, but only about laws operating against them in a discriminatory manner. It was those arguments which were rejected in EM.

The appellants also complain that the FTT made errors in its factual findings in relation to the further legal consequences of the appellants’ not being recognised in India as being in a marriage or in a civil partnership, with all the incidents of that status which they would enjoy in the UK.

The first complaint was that the FTT was wrong to find that:

“Whatever they say, they have entered into a civil partnership and that will continue however long they want it to”

because, on removal to India, the civil partnership (now marriage) would have no legal status, and there would therefore be no legal recognition, or protection, of the appellants’ relationship, on removal. The appellants submitted that, only if the civil partnership were recognised and operative in India, which would lead to a status and provide benefits and protection, could it be said to continue. They would have no matrimonial life in India. It was said that this error was repeated at paragraph 32 of the UT determination.

I disagree. The appellants’ relationship is recognised by UK law. That is an undeniable fact. They are now a married couple. They will continue to live as such, for so long as they choose to stay together, notwithstanding that Indian law does not recognise their relationship as one of marriage or legal civil partnership. In the passage complained of the FTT was doing no more than affirming that basic proposition. The judge clearly understood, and took account of the fact, in his determination of the second Razgar question, that their legal relationship (at that time a civil partnership) would not be recognized upon removal to India. The Upper Tribunal reached a similar conclusion; see paragraph 32 of its judgment.

So far as the other alleged errors by the FTT about the legal consequences of their civil partnership status in the UK were concerned, as compared with the lack of any advantages in India, it could perhaps be said that the FTT - in concluding that these were not rights at all - did not attach sufficient weight to the facts that, as a same-sex couple, the appellants had entitlements in the UK (which could not apparently be enjoyed in India):

The FTT could also perhaps be criticised for speculating that both appellants would ‘come out’ and openly express their sexual identity in India, since the evidence did not support such a finding.

However, in my judgment, those errors, even if they were errors, do not undermine the FTT’s ultimate conclusion that the lack of legal recognition of these matters, as well as the appellants’ civil partnership, in India would not result in a flagrant denial or violation of the appellants’ rights to family life. There was, for example, no evidence to suggest that A.I.D. treatment (artificial insemination by donor) would not be available to the appellants in India, or that they could not travel abroad to obtain the relevant treatment.

The other principal matter upon which the appellants relied in support of their appeal was their inability to live openly in India to avoid discrimination, particularly in the light of section 337 and the recent decision of the Indian Supreme Court in Koushal. In this context the appellants relied upon HJ (Iran) v Secretary of State.

None of Mr Chelvan’s submissions in relation to this issue persuaded me that the FTT was wrong to conclude that the conditions which the appellants would face on their return to India would not amount to a flagrant denial or violation of their article 8 rights.

First, HJ (Iran) v Secretary of State, HT (Cameroon) were cases which addressed whether the circumstances prevailing in Iran and Cameroon gave rise to a well-founded fear of (state) persecution under the Refugee Convention. There is no claim of risk of persecution in the present case, whether from the state or the appellants’ families. As Miss Broadfoot submitted, at its highest, therefore, the relevance of HJ (Iran) could only be to support a submission that an inability to live freely and openly to avoid discrimination amounted to a flagrant denial of the appellants’ article 8 rights.

But in my judgment, on the extensive evidence before it, briefly summarised by the judge at paragraphs 15, 17, 18, 20 and 22, the FTT was clearly entitled to reject that submission as not being applicable to these appellants living together as a couple in an “enlightened urban area” such as Delhi, “where they were more likely to be accepted”. The judge found as a fact that they would not be bullied by their parents into giving up their relationship and that, although in many respects the situation for lesbians and gays in India was “very poor”, the situation for them was definitely improving. Moreover, his views are supported and endorsed by the recent India country guidance cases to which I have referred above.

In my judgment, the subsequent decision of the Supreme Court in Koushal cannot possibly be regarded as having such an effect on the position of gays or lesbians in India as retrospectively to demonstrate that the FTT was wrong to reach the conclusion which it did in relation to the appellants’ ability to live in India as a lesbian couple, and that there would be no nullification or flagrant violation of their rights to family life on their return to India. Nor can the decision be relied upon to demonstrate that it “would probably have had an important influence on the result of the case”. The original decision was simply one relating to the issue whether section 377 was in breach of the constitution and contained the express proviso that no views were being expressed about any proposed amendments to the IPC. Moreover, as recited above, the appeal to the Supreme Court was not supported by the Government of India, the judgment itself referred to helpful submissions by the Attorney General and the Supreme Court has recently agreed to refer the curative petitions to a five judge constitution of the Court. All those facts underscore the basis for the FTT’s finding that the situation in India for lesbians is improving, in part due to the visible public debate as to the rights of same-sex couples.

In this context, if, as Mr Chelvan submitted, this court should have regard to further materials in making its decision, then in my view it is also relevant to refer to the conclusions reached by the Upper Tribunal in the recent country guidance case of AR and NH (lesbians) India (CG), where it gave extensive consideration to the expert and other evidence before it relating to the position of lesbians in India, including the effect of the previous country guidance case relating to gay men in India. The judgment is instructive.

The appeal concerned two lesbian women of Indian citizenship who had entered into a civil partnership in the United Kingdom. They appealed against the Secretary of State’s decision to remove them to India after refusing them refugee status, humanitarian protection or leave to remain in the UK on human rights (i.e. article 8) grounds. I quote the relevant parts of the Upper Tribunal’s determination:

“Existing country guidance

4.

On 12 February 2014 the Upper Tribunal gave guidance dealing with the position of non-heterosexual males in India, in MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC), in the following terms:

"a.

            Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual activity. On 2 July 2009 the Delhi High Court declared section 377 IPC to be in violation of the Indian Constitution insofar as it criminalises consensual sexual acts between adults in private. However, in a judgment of 11 December 2013, the Supreme Court held that section 377 IPC does not suffer from the vice of unconstitutionality and found the declaration of the Delhi High Court to be legally unsustainable.

b.

             Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.

c.

             Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory or which would otherwise reach the threshold required for protection under the Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3 ECHR.

d.

      Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.

e.

             It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India.

f.

              India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities. "

The country guidance issue

5.

The Upper Tribunal in MD did not receive evidence or give guidance about the position of women homosexuals (lesbians). We note that in (f) the Upper Tribunal did make a generic finding as to the LGBTI community which may be applicable to these appellants, but as regards the position of lesbians in general, there is a lacuna in the MD analysis which merits further consideration.  

6.

We also consider the effect on risk to lesbians arising from the decision of the Indian Supreme Court in Koushal and another v Naz Foundation and Others (Civil Appeal No. 10972 of 2013), which held that section 377 of the Indian Penal Code (IPC) which criminalised homosexual sex was not unconstitutional and said that it was a matter for the Indian legislature to determine how, if at all, that controversial provision should be amended. ……

Discussion

62.

The provisions in the IPC relied upon by the appellants are section 368 [kidnapping and abduction] and 377:

63.

The mere existence in national legislations of criminal provisions prohibiting LGBTI sexual activity does not amount to persecution. The approach to be taken was set out by the Court of Justice of the European Union in Minister voor Immigratie en Asiel v X, Y & Z [2013] EUECJ C-199/12:

"1.

Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 ... must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

2.

Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

3.

Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation."

64.

We begin by noting that both parties accept that there have been no prosecutions of lesbians under section 377 at all, and that in practice, section 377 is perceived in Indian law as inapplicable to lesbians. In February 2014, when MD was decided, the effect of the Naz Foundation judgment handed down by the Indian Supreme Court on 11 December 2013 was too recent for any long-term effects to be reliably established. We recall that the legal position set out in the Naz Foundation judgment went no further than finding that section 377 was not unconstitutional.

65.

The Supreme Court's reasoning in the Naz Foundation judgment is based upon section 377 as it stood when the case was heard, some 2 years before the judgment was handed down. Amendments to the law of rape in sections 375-376 made by the Criminal Law (Amendment) Act 2013 did not include promised amendments to section 377, which was considered to be sub judice pending the outcome of the Naz Foundation appeal in the Supreme Court.

66.

The Naz Foundation decision remains under challenge: although a number of review petitions filed against the decision were dismissed by the Supreme Court on 28 January 2014, in March 2014, the Naz Foundation filed a curative petition against the judgment, which, if successful, would result in the December 2013 Supreme Court judgment being set aside and remade by a different constitution of the Court. On 23 April 2014, a four-judge bench of the Court gave permission for the curative petition to proceed to oral argument. No indication of the outcome is before us. (Footnote: ⁹)

67.

The curative petition relies on the failure to take account of the changes wrought by the Criminal Law (Amendment) Act 2013 to the definition of rape in section 375, which was amended to include penile penetration, by any means, of women as well as men, and on the perceived incompatibility of the Naz Foundation judgment with the more human rights-based approach in the judgment of the Indian Supreme Court on 15 April 2014 in National Legal Services Authority v Union of India and others, Writ Petition (Civil) no.400 of 2012 (the NLSA judgment) which is referred to in the 2014 US State Department Report published on June 24 2015.

68.

We are entitled to have regard to the NLSA judgment as indicative of the legal approach which the Indian Supreme Court may adopt in future, if the curative petition succeeds. The NLSA judgment is supportive of the position taken by the Upper Tribunal in its existing country guidance and adopts a rights-based international approach to the position of transgender persons (TGs) in India, directing that they be given legal and human rights as a 'third sex' in Indian law. In contrast to the lukewarm support for section 377 in the Naz Foundation judgment, Justice K.S. Radhakrishnan in his judgment in NLSA said this:

"119.

The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social reality. ...It is the denial of social justice which in turn has the effect of denying political and economic justice. ...

122.

It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic. It must be understood in a way that intricate [sic] and advances modern reality. The judiciary is the guardian of the Constitution and by ensuring to grant legitimate right that is due to TGs, we are simply protecting the Constitution and the democracy inasmuch as judicial protection and democracy in general and of human rights in particular is a characteristic of our vibrant democracy."

69.

We have regard to the evidence of Professor Shahani. In his own evidence, both written and oral, he accepted that there were places in India where lesbians could live in open relationships, particularly where they are what he described as 'middle class' and have financial independence. We note the evidence he gave about the problems experienced by a number of lesbian couples over the years, which strikingly (given the lack of any recognition of same-sex marriage in India) often arose after the couple had eloped and tried to marry, in a variety of ceremonies both civil and religious. In most, but not all the cases cited, the problems had come from the women's families.

70.

We also note Professor Shahani's evidence about the range of social networks within India, but that will of course be a question of fact in each case. He was unaware of many recent examples and the instances in his report were many years old, in most cases. Professor Shahani's personal knowledge of life for LGBTI persons in India appeared to be limited to the position, particularly for male non-heterosexuals, in his home city, Mumbai. Professor Shahani conceded that the evidence before the Tribunal did not amount to reliable evidence of a pattern of police misconduct to lesbians. We note that same-sex couples have difficulty in legally adopting children, but given that single women may adopt or undergo IVF, such couples do not need to be childless and we do not consider that legal restriction to be capable of reaching the persecution threshold.

71.

We have considered the Fernandez-Gomathy case study. The width of their definition of 'violence' includes many circumstances normally considered to be harassment or discrimination, rather than violence, which makes the study less helpful, but it is the only systematic study available concerning the circumstances of lesbians in India. The Fernandez-Gomathy case study is not new: it was finalised in 2003, long before the liberalisation which the Delhi High Court judgment in Naz Foundation began. The principal risk identified by the women studied came from their family members, and from silent shame, social stigma, and ostracism in their home areas.

72.

The press reports before us are striking: they speak of difficulties for lesbian couples who eloped or married each other without their family members' approval. We note, in particular, that a lesbian couple who fled Mumbai for Delhi in 2011 received protection from the Delhi Police from overzealous officers of the Mumbai police, after theft charges were laid by family members in Mumbai. In May 2012, a police post in Ambala arranged protection and the family dispute went before the Civil Court for a decision as to whether the families should be made to accept their daughters' sexuality. Another report, which may concern the same lesbian marriage, reflects police protection ordered by the Punjab and Haryana High Court and formal disinheriting of one of the women by her family.

73.

Reports after the Naz Foundation judgment reflect public pressure on both sides of the argument and political manoeuvring as the new Indian BJP government decides how to approach the question. We do not accept the submission of Ms Hashmi that the evidence is that the BJP is implacably opposed to LGBTI rights. We note that immediately after the Indian Supreme Court's decision in December 2013 in the Naz Foundation case, a BJP spokesman said in a live interview that homosexuality was unnatural and that the party supported section 377. In March 2014, members of the BJP's ideological fount, Rashtriya Swayamsevak Sangh (RSS) expressed a firm anti-LGBTI stance ahead of the election in which the BJP won power. Since that election, other BJP leaders such as Arun Jaitley and Harsh Vardhan have spoken in favour of decriminalising homosexuality. We do not consider that the evidence demonstrates that there is a fixed overall BJP position on the issue.

74.

The Indian government has begun collecting statistical data on arrests of homosexuals in many, but not all, Indian states. The population of India was last recorded in 2014 at over 1.2 billion people. The records in the bundle before us indicate that in 2014 there were 778 arrests of homosexuals nationally, but not whether the arrests were followed by a prosecution, nor whether those arrested were non-heterosexual men or lesbians. We do not consider that this amounts to reliable evidence of arrests of lesbian women or prosecution of lesbian women, at a level capable of amounting to a real risk of persecution or serious harm.

75.

We remind ourselves of the guidance on transgender or 'third sex' persons given by the Supreme Court in the NLSA case, just a few months after the Naz Foundation judgment, and the ongoing challenges to the Naz Foundation decision. We also recall that the Indian government is to bring in legislation in the next Parliament, following the success of the private members' bill. We cannot on that basis regard the effect of the Naz Foundation judgment as a re-criminalisation of homosexual activity, still less of lesbian sexual activity.

76.

Since there have been no prosecutions of lesbians in India, we agree with Ms Hashmi that the real issue is the risk to lesbians arising out of the activities of non-state actors. Ms Hashmi conceded, as did Professor Shahani, that the evidence does not support a finding of endemic police complicity in harassment or other ill-treatment of lesbian couples or individuals.

77.

Even if there were an individual risk of persecution or serious harm in a lesbian woman's home area, given the size and enormous population of India, in many cases there will be an internal relocation option The question of internal relocation will be one of fact for the decision maker in each individual case where in the home area a real risk of persecution or serious harm is found to exist. [Following paragraphs excluded as relating to persecution].

78.

We bear in mind all of the evidence before us, and we give the following country guidance:

(7)

The guidance in MD (same-sex oriented males) India CG [2014] UKUT 65 (IAC) stands. The guidance at (a) - (f) in MD (India) applies equally to lesbians.

(8)

A risk of persecution or serious harm for a lesbian woman in India, where it exists, arises from her family members, and the extent of such risk, and whether it extends beyond the home area, is a question of fact in each case.

(9)

The risk of persecution or serious harm is higher for uneducated lower class lesbian women in rural areas, who remain under the control of their family members and may not be permitted to leave the home to continue meeting their lesbian partners.

(10)

Where family members are hostile to a lesbian woman's sexuality, they may reject her completely and sometimes formally renounce her as a member of that family. In such a case, whether relocation to a city is unduly harsh will be a question of fact, depending on the ability of such a lesbian woman to survive economically away from her family and social networks.

(11 If a lesbian woman's family wishes to pursue and harm her in the place of internal relocation, their ability to do so will depend on the reach of the family network, how persistent they are, and how influential. The evidence indicates that there is normally sufficient state protection for women whose families seek to harm them in their place of internal relocation.

(12)

In general, where there is a risk of persecution or serious harm in a lesbian woman's home area, for educated, and therefore 'middle class' women, an internal relocation option is available. They are likely to be able to relocate to one of the major cities in India and are likely to be able to find employment and support themselves, albeit with difficulty, and to live together openly, should they choose to do so. In general, such relocation will not be unduly harsh.

The individual appellants

79.

Applying the principles set out above, we now turn to the circumstances of these appellants.

……

83.

It is not in dispute that the appellants wish to continue living together as a couple, if they are returned to India. We accept that both of them have rejected, and been rejected by their families. We find that these appellants have an internal relocation option to cities in other states such as Mumbai, Delhi or Bangalore and that it would not be unduly harsh to expect them to exercise that option. The appellants are highly educated and both accepted in their evidence was that their qualifications would get them good jobs in an Indian city, such that they would be able to live together and would be able to pay for accommodation, food and so on.

84.

As regards Article 8 ECHR, the appellants have family life together, which would be unaffected by their return to India. Their private life in the United Kingdom can be given little weight since it has all developed while their presence here was either precarious or unlawful (see sections 117B(3) and 117B(4) of the Nationality, Immigration and Asylum Act 2002 (as amended)). It has not been suggested that the appellants could meet the requirements of paragraph 276ADE and Appendix FM of the Immigration Rules.

85.

Nor are there any Nagre exceptional circumstances in either appeal. The absence of recognition for their civil partnership is not of itself sufficient to amount to a breach of Article 8 ECHR, still less to persecutory treatment or serious harm (see LH and IP (gay men: risk) Sri Lanka (CG) [2015] UKUT 73 (IAC) at [120]-[122]). The evidence of their private life, if any, in the United Kingdom remains slender and is insufficient to outweigh the United Kingdom's right to control immigration, as both First-tier Tribunal Judges found in their decisions. We do not consider that removing these appellants to India would be disproportionate on Article 8 grounds.

The decision in AR and NH (lesbians) (CG) demonstrates that there is no realistic basis for challenging either the FTT’s or the Upper Tribunal’s decision in this case on the basis of the Supreme Court’s judgment in Koushal dated 11 December 2013. I would however have come to the same conclusion, for similar reasons, even in the absence of the recent decision of the Upper Tribunal in AR and NH (lesbians) (CG). Koushal does not retrospectively demonstrate that the FTT made a mistake of fact giving rise to unfairness.

In all the circumstances, there is, in my judgment, no basis for the appellants’ attack on the FTT’s conclusion that their removal would not give rise a flagrant denial or violation of the appellants’ article 8 rights, notwithstanding possible discriminatory treatment in India. The FTT made no error of law in concluding that article 8 was not engaged.

There was no separate challenge to the FTT’s approach to the third and fourth Razgar questions, namely that the interference was in accordance with the law and necessary in the economic well-being of the country. The complaint was that in circumstances where, as the appellants contended, the removal gave rise to a flagrant denial or violation of their article 8 rights, such interference was not proportionate to the legitimate public end sought to be achieved.

This issue strictly only arises if the FTT was wrong in its conclusion that article 8 was not engaged. But in the alternative I would also hold, if necessary, that, on the particular facts of this case, and even on the assumption (contrary to my conclusion) that a removal would give rise to a flagrant denial or violation of their rights to family life, such removal was nonetheless proportionate. This was a case where, having already become “extremely close friends” in India, the appellants had chosen to come to this country and to enter into a civil partnership, when their presence here was, so far as the future was concerned, necessarily precarious. There is no evidence to support any risk of violence to them on their return, or any risk of prosecution, and whilst, no doubt, the family and societal discrimination which they might encounter on their return would be unpleasant, and something which they would not experience in this country, that would not be sufficient to outweigh the need for the UK to maintain proper immigration controls in the economic interests of the country.

For the above reasons, I would dismiss this appeal.