Information Note on the Court’s case-law 197

June 2016

Taddeucci and McCall v. Italy - 51362/09

Judgment 30.6.2016 [Section I]

Article 14

Discrimination

Refusal to grant a residence permit for family reason to a same-sex foreign partner: violation

Facts – The applicants have lived together as a homosexual couple since 1999. They lived in New Zealand, as an unmarried couple, until December 2003, when they decided to settle in Italy.

After first moving to Italy the second applicant, a New Zealand national, had a student’s temporary residence permit. He subsequently applied for a residence permit on family grounds but it was denied on the basis that the statutory criteria were not fulfilled. A partner could not be treated as a “family member”, only a spouse. None of their appeals were successful.

The applicants left Italy in July 2009 and settled in the Netherlands, where they got married in May 2010.

Law – Article 14 taken together with Article 8: Italian law did not treat unmarried couples differently according to their sexual orientation, but limited the concept of “family member” to heterosexual couples, given that only the latter could get married and acquire the status of “spouse”. The applicants, forming a homosexual couple, had been treated, for the purposes of obtaining a residence permit on family grounds, in the same manner as persons having a significantly different situation to their own, namely heterosexual partners who had chosen not to get married.

However, the fact of applying the same restrictive rule to unmarried heterosexual and homosexual couples, with the sole aim of protecting the traditional family, had subjected the applicants to discriminatory treatment. Without any objective or reasonable justification, the Italian State had failed to treat homosexual couples like the applicants differently from heterosexual couples and to take account of the possibility for the latter, but not the former, to obtain legal recognition of their relationship and thus to meet the requirements of domestic law for the purposes of obtaining a residence permit on family grounds.

It was precisely the inability for homosexual couples to have access to a form of legal recognition that had placed the applicants in a different situation from that of an unmarried heterosexual couple. Even assuming that at the relevant time the Convention had not obliged the Government to provide, in the case of stable and serious same-sex relationships, the possibility of a civil union or registered partnership through which they would have had the requisite status and certain basic rights, it was undeniable that, unlike a person in a heterosexual relationship, the second applicant had had no legal means in Italy by which to obtain the status of “family member” in relation to the first applicant and had not therefore been entitled to a residence permit on family grounds.

Moreover, there was a “significant trend” worldwide towards treating same-sex partners as “family members” and recognising that they had the right to live together, and also an emerging European consensus to the effect that, in matters of immigration, same-sex unions should be regarded as “family life”.

At the relevant time, by deciding, for the purposes of granting a residence permit on family grounds, to treat homosexual couples in the same way as unmarried heterosexual couples, the State had breached the applicants’ right not to be subjected to discrimination on grounds of sexual orientation in the enjoyment of their rights under Article 8 of the Convention.

Conclusion : violation (six votes to one).

Article 41: EUR 20,000 jointly for non-pecuniary damage.

(See also Thlimmenos v. Greece [GC], 34369/97, 6 April 2000, Information Note 17 ; Schalk and Kopf v. Austria , 30141/04, 24 June 2010, Information Note 131 ; X and Others v. Austria [GC], 19010/07, 19 February 2013, Information Note 160 ; and the Factsheet on Sexual Orientation )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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