As any lawyer will be able to tell you the legal system in Great Britain is a complicated digest. Often the purest and simplest information you may want to know regarding your own circumstances or that of those nearest to you can be cloaked in bureaucratic language and off-putting technical jargon.
However, if you choose a good solicitor to help you with your situation, their knowledge and expertise of how the law works in this country may prove indispensable to obtaining the best results, and finding what exactly in the ever-amendable (constantly changing) English constitution is appropriate and applicable to you. Therefore, QX has put together some of the best LGBT-focused solicitor firms in the UK, to provide a basic outline of gay rights in law in six of the areas that most affect the LGBT community.
Although not automatically an issue as such to those of us with British or EU passports, if you have – or may in the future – meet a partner who resides outside the European Economic Area (EEA) then there have been significant changes to immigration law in recent years that may affect you.
‘The progress with regards to immigration law in recent years has been great,’ says Barry O’Leary of Wesley Gryk, UK immigration specialists. ‘Just fifteen years ago, there was no recognition of same-sex relationships anywhere in British law. However, we must remain alert to the challenges that LGBT individuals still face.
For example, the 9 July 2012 changes to the immigration rules, including much higher financial requirements and the government’s interpretation of Article 8 of the European Convention on Human Rights (the right to family life), may have a disproportionate impact on same sex bi-national couples, given that the United Kingdom is often the only place where couples can live given the hostility around the world towards same-sex relationships.’
Emma Bennett of Davidson Morris expands upon Mr O’Leary’s point of the ‘higher financial requirements’ following the 9th July 2012 changes:
• ‘From the 9th July all civil partners wishing to settle in the UK with their partner must be able to demonstrate that their British sponsor earns in excess of £18,600 per annum. If the British sponsor is unable to demonstrate this, then the non-EEA family member will be unable to join their partner in the UK.’
• Upon Article 8: ‘The UK Border Agency have also imposed changes into the Immigration Rules which now means that only if a non-EEA migrant has been in the UK for in excess of 20 years will they be able to demonstrate that they have established a private life in the UK.’
‘It’s going to be interesting to watch the developments on this,’ says Emma. ‘However it’s important not to panic if you are one of the many people who overstayed their visas in the UK and now don’t know what to do. It’s important for anyone in the UK illegally who wants to regularise their status to take legal advice from solicitors and barristers.’
Asylum in the UK for those fleeing LGBT persecution in their home countries is not guaranteed or doesn’t come without a fight as many high profile cases in recent years such as the campaign to save Mehdi Kazemi, a young gay Iranian student who was to be tried and hanged for sodomy in his home country. Kazemi has now been granted asylum in the UK, but not without a legal battle.
‘Though case law and practice has undoubtedly changed for the better with regards to LGBT asylum seekers, there are many who are still denied the protection they need,’ says Mr O’Leary. ‘We must ensure they are properly represented so that the Home Office afford them the sanctuary they deserve. The work of the UK Gay & Lesbian Immigration Group (UKGLIG) is crucial and deserves our utmost support.’
WORK PLACE DISCRIMINATION
Possibly the most common area in which UK LGBT citizens feel their legal rights may be affected is in work place discrimination. There have been significant developments in the law in recent years to protect your person if you feel you are being unfairly harassed or on the receiving end of hurtful bullying because of your sexual orientation.
‘The Employment Equality (Sexual Orientation) Regulations 2003 not only makes it unlawful to discriminate on grounds of a person’s actual sexuality but also their perceived sexuality,’ says Karen Holden of A City Law Firm. ‘The law now also protects civil partners; it would be discriminatory to grant the spouses of married employees benefits but not the civil partners of employees.
‘If you are being treated less favourably, put at a disadvantage, victimised or harassed by discriminatory behaviour or policies you should submit a written grievance to your employer; go through the grievance procedure and/or submit a claim.
‘To support any grievance or claim keep detailed diary notes of events and comments; retain any supportive emails or letters, and always have someone present if you are attending any meetings.’
Hate crimes are very obviously what they are – if you have been attacked, physically assaulted or verbally abused for being gay then you have been the victim of a hate crime.
Rather than a solicitor you need to report the matter to your local police force who should pursue bringing the perpetrators to justice.
However if you don’t feel the issue has been taken seriously enough by the police force in question then that may count as discrimination again, or even an indirect form of harassment, which may stem from many unexpected corners of society and new laws are designed to change. Luke Hutchings of Best Solicitors gives us some more information.
‘The Equality Act extends the obligation not to discriminate against LGBT people from the workplace into most areas of society,’ says Luke.
‘There have been a number of cases where persons providing services to the public have treated LGBT people differently or less favourably: for instance, by the owner of a B&B refusing to let a double room to a gay couple. In some of these cases, the service provider has claimed that to provide equal treatment would clash with their religious beliefs.
Cases decided in the Courts have ruled that there is no such clash and all service providers must treat customers equally.’
Surrogacy and adoption are the two most common ways of enabling same-sex couples to have their own children but there are legal issues attached to both which Karen Holden tell us more about.
‘Surrogacy arrangements are legal here in the UK, but you should know the limitations our current laws have:
• The surrogate contract is not legally binding.
• A gestational mother can change her mind about giving you the baby up to six weeks after the birth.
• You cannot pay a surrogate other than reasonable expenses.
The High Court was recently required to address a case where a surrogacy arrangement had failed in that the surrogate refused to give up the baby. This leading case flagged up the serious consequences and risk that can arise by the making of informal surrogacy arrangements.
The costs of this case, the financial liabilities of the father and the sad and emotional distress of the intended parents is a warning to those that wish to embark on these arrangements without having written agreements and the best advice they can get.’
On adoption, Karen says: ‘If a gay male couple wish to have sole parental rights over a child, this can be done through adoption. If your partner fathers a child, you will have to adopt the child in order to hold the same rights and obligations as a natural parent and be on a par with your partner.
Being in a Civil Partnership will be a factor that is taken into consideration when granting the adoption order in your favour. While not being in a Civil Partnership will not prevent an order being made, it will certainly be harder to persuade the local authority that adoption is in the child’s best interests.’
Finally, even now in 2012 there is a large stigma attached to those suffering from HIV+ status. Karen Holden tells us more about your rights in the workplace if you are HIV+.
‘You are not obliged to tell your employer or work colleagues anything about your sexual orientation or HIV status. However, there may be advantages to you for disclosing this to an employer you trust. For example: you may be taking sick leave to visit the hospital, which distorts your good work report or maybe you need adjustments to your working environment to stay healthy.
HIV is a disability under the Disability Discrimination Act 2005 (DDA), which means that your employer must make reasonable adjustments to support you if advised of your condition and disclosing your status to a manager still entitles you to confidentiality.
‘You are protected under the DDA should you suffer any form of discrimination, harassment or bullying or unfair treatment as a result of your HIV status (by your work mates or employer).’
• A City Law Firm, 2 Devonshire Square, London, EC2M 4UJ. 020 7426 0382. www.acitylawfirm.com
• Best Solicitors LLP, Fountain Court, 2 Victoria Square, Victoria Street, Saint Albans, Hertfordshire, AL1 3TF. 01727 884 688. www.bestsolicitorsllp.co.uk
• Davidson Morris, 33 Queen Street, London, EC4R 1AP. 0845 413 7000. www.davidsonmorris.com
• Wesley Gryk, 140 Lower Marsh, London, SE1 7AE. 020 7401 6887. www.gryklaw.com