Refusal to grant residence permit to gay couple on family grounds

Taddeucci and McCall v. Italy – European Court of Human Rights

In the case of Taddeucci and McCall v. Italy (application no. 51362/09) the European Court of Human Rights held, by six votes to one, that there had been:

a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned a refusal by the Italian authorities to grant a residence permit to a gay couple on family grounds.

The Court found in particular that the situation of Mr Taddeucci and Mr McCall, a gay couple, could not be understood as comparable to that of an unmarried heterosexual couple. As they could not marry or, at the relevant time, obtain any other form of legal recognition of their situation in Italy, they could not be classified as “spouses” under national law. The restrictive interpretation of the notion of family member constituted, for homosexual couples, an insuperable obstacle to the granting of a residence permit on family grounds.

That restrictive interpretation of the concept of family member, as applied to Mr McCall, did not take due account of the applicants’ personal situation and in particular their inability to obtain a form of legal recognition of their relationship in Italy.

In deciding to treat homosexual couples in the same way as heterosexual couples without any spousal status, the State had breached the applicants’ right not to be subjected to discrimination based on sexual orientation in the enjoyment of their rights under Article 8 of the Convention.