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Cyprus Internet Directory [ Ombudswoman raps Migration over treatment of gay partner ]

Ombudswoman raps Migration over treatment of gay partner

THE MIGRATION Department has had its knuckles rapped for preventing the gay partner of a Cypriot man from working in Cyprus. The department was accused by the Ombudswoman of taking “hypocritical” and “paradoxical” decisions while discriminating against homosexual couples.

The head of the anti-racism and discrimination authority, Eliana Nicolaou, criticised the department for giving the foreign gay spouse of a Cypriot citizen the right to live but not work in Cyprus.

The case relates to a Cypriot man who married his partner in Canada in 2006. A year later, the couple moved to Cyprus but the migration department refused to give the spouse a residence permit. The Cypriot partner filed an appeal at the Supreme Court, which remains pending.

The authorities eventually gave the spouse a visitor’s residence permit, which gives him the right to stay on a yearly basis but does not permit him to take on any form of employment. The reasoning behind the move was that gay marriages have no legal status in Cyprus.

The spouse is a teacher of English Literature and has experience in teaching children with special needs. His Cypriot husband complained to the anti-discrimination authority that the temporary “visitor” status made daily life very difficult for the couple as his partner could not work or even open a bank account.

Nicolaou highlighted that her focus was not the recognition of same-sex marriages in Cyprus, but the treatment of those who stay here under the status “visitor”.

The relevant European law on the rights of family members of EU citizens (Directive 2004/38/EC) was transposed into Cypriot law in 2007.

According to Nicolaou, the law does not recognise the validity of gay marriages, but it does acknowledge the need to “facilitate the entry and stay in the Republic” of those who don’t constitute a family member but are supported by an EU citizen, or who co-habit with the EU citizen in their country of origin.

The Ombudswoman goes on to say that although homosexual couples do not constitute “family life”, preventing gay relationships is likely to raise the issue of intervention into private life.

This view is confirmed by the European Convention of Human Rights (ECHR) and subsequent case law. Article 8 of the ECHR refers to private life, which encompasses the right to personal development, including gender identification, sexual orientation and sexual life.

Nicolaou said European law has stayed clear of giving direct recognition but moved more towards indirect recognition of gay marriages.

She concluded that the migration department’s use of discretionary powers failed to meet the principle of equal treatment since it directly connected the right of employment with the non-recognition of gay marriages in Cyprus.

Nicolaou described the refusal to give the gay spouse employment rights as “hypocritical”. She argued that his right to stay in the country as a spouse was recognised, hence the renewal of his visitor’s residence permit, “though without, paradoxically, recognising his right to work”.

Just because there is no legal status for gay marriages in Cyprus, the migration department doesn’t have to act in a way which will “create obstacles in exercising the basic human rights of citizens arising from respect for private life”.

Cyprus could not have half-measures when the protection of gay couples was already a part of European law, she noted.

“Excluding every gay partner of a European citizen from the rights afforded heterosexual couples constitutes unjustified, negative discrimination based on sexual orientation and clear discrimination against same-sex couples,” said Nicolaou.

She further censured the department for adopting a “negative approach” to the issue, going beyond “the logical boundaries of the exercise of its discretionary powers”. The department’s actions were unjustified in the circumstances, since it didn’t take into account the cohabitation of the two men and their marriage abroad.

The Ombudswoman called on the migration department not to link the spouse’s right to work with the legal recognition of same-sex marriages.

She further called for the re-examination of his request and the immediate recognition of his right to work and reside in Cyprus.

This is not the first time the department has been caught taking the “moral” high ground on matters of law. Last February, this paper wrote about a Filipino carer of a cancer patient who was about to be deported, based on the grounds that the two were having an affair, despite the fact she was already married.

The Interior Ministry’s permanent secretary intervened in the final hour to prevent her deportation since there was no legal basis for deporting the carer of a sick man based on “moral grounds”.

(Source: Cyprus Mail)
Copyright © Cyprus Mail 2008 Please contact Cyprus Mail for the copyright terms of this article.

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