LGBTI equality and human rights in Europe and Central Asia

Refusal to grant a same-sex (non-EU) partner a residence permit was discrimination based on sexual orientation

The European Court of Human Rights has stated that Italy’s refusal to grant one partner in a same-sex couple a residence permit violated their rights under the European Convention on Human Rights. 

Today (30 June 2016) the Strasbourg court held that to deny same-sex couples residence permits on ‘family grounds’ was discrimination.

The Court decision in Taddeucci and McCall v Italy states that there had been a violation of Article 14 (prohibition of discrimination) taken with Article 8 (respect for family life). The couple at the centre of this case, Mr. Taddeucci and Mr. McCall, had moved to Italy in 2003. After Mr McCall’s temporary student permit had expired, he had applied for residence on family grounds.

The Italian authorities refused, and subsequent court appeals were unsuccessful, as they were not considered ‘spouses’ under Italian law. Because it became illegal for them to continue to live together in Italy, Mr. Taddeucci and Mr. McCall were forced to leave the country.  In July 2009, they moved to the Netherlands, where Mr. McCall was granted a residence permit as the partner of an EU citizen

In today’s judgment, the Court held that this restrictive interpretation of who constitutes a family member was an insurmountable obstacle for same-sex partners who wanted to obtain permits, as they didn’t have any means of having their partnership legally recognised in Italy (this case was taken prior to the introduction of civil union legislation).

Of particular interest, Judge Spano noted, in a concurring opinion, that “…the Court thus firmly rejects the argument that States can legitimately invoke the concept of the “traditional family” as a basis for denying a request for a residence permit made by a foreign national who is in a relationship with a citizen of the same sex.”

 “This case is a perfect example of the every-day struggles that same-sex couples can still face across Europe – the couple originally moved back to Italy because one of them was in ill health. Having to go through a worrying personal time is hard enough, but these types of difficulties can be compounded for same-sex couples when they encounter additional discriminatory obstacles. ” said ILGA-Europe’s Executive Director Evelyne Paradis.

“ILGA-Europe welcome the ECtHR’s decision as another confirmation from the Court that discrimination against same-sex couples based on their sexual orientation cannot be tolerated.”

Robert Wintemute, the lawyer for Mr. Taddeucci and Mr. McCall, and a Professor of Human Rights Law at King's College London, said:

"The Court's judgment is a big step forward on the long road to equality for same-sex couples in Europe.  Almost 13 years after deciding in Karner v. Austria in 2003 that cohabiting same-sex couples must enjoy the same rights as cohabiting different-sex couples, the Court has ruled for the first time that a specific, important right (a family-member residence permit) cannot be restricted to different-sex spouses and denied to cohabiting, unmarried and unregistered, same-sex partners.  All 47 Council of Europe countries must now ensure that they provide some means for binational same-sex couples to qualify for a residence permit.  This could be by allowing them to marry or register their partnership, or simply by recognising their cohabitation for the purpose of a residence permit."

The International Commission of Jurists (ICJ), ILGA-Europe and the Network of European LGBTIQ* Families Associations (NELFA) had all intervened as third-parties in this particular case.

This case follows on from the February decision in Pajić v Croatia. There, the Court ruled that blocking same-sex couples from obtaining residence permits for family reunification purposes purely because of their sexual orientation is discriminatory.