Pagan wins 'family life' human rights case
An American woman who worships Norse gods has won the right to stay in Britain because of her “family life” with her boyfriend and his wife.
By David Barrett and Claire Duffin
7:00AM GMT 18 Dec 2011
Home Office officials told Emily DiSanto, 25, that they would not grant her permission to stay in Britain because the law bans what are in effect polygamous relationships.
But now she has won an extraordinary legal case in which she was allowed to remain here on the basis of her human right to family life.
The 25-year-old now shares Alan and Anne-Marie Caulfield’s marital home in south-east London with his two children – one by each of the women.
The American's lawyer told the court that their religious beliefs bar the Caulfields from divorcing.
Immigration judges were also told that forcing her to leave the country would affect the wellbeing of Mrs Caulfield’s son, as well as her own young daughter.
The case is the latest example of how human rights laws are being used to overturn the decisions of civil servants and ministers in immigration cases in what critics say are dubious circumstances.
It comes as pressure mounts on the Government to reform human rights laws, which many Conservative backbenchers say are threatening to make permanent and undemocratic changes to the rule of law in Britain.
The latest case shows the definition of family life is now widening far beyond the conventional couple with children and has implications for immigrants who believe in polygamy, which is still practised in parts of the Muslim world and – illegally – by breakaway branches of the Mormon religions in the United States.
Miss DiSanto’s application succeeded after the Home Office dropped its objection on the grounds of bigamy, and she made two appeals.
In the course of the appeals, her lawyer said the Caulfields no longer had a sexual relationship but could not divorce on religious grounds, as all three worship the Norse gods, including Odin and Thor.
Odinists claim to follow the beliefs practised by Vikings in Britain and Scandinavia, and some Anglo-Saxons in Britain, before Christianity became the sole religion in the course of the Dark Ages.
Followers worship Odin, the chief god of Norse mythology and worship in groups known as Hearths, performing ceremonies called Blothars in which their gods are honoured by drinking mead – an alcoholic drink made from honey – from an animal horn and reciting poetry.
The main branch of British Odinism – the Odinic Rite – does permit divorce, but it is unclear if the three follow its beliefs or have their own variation on them.
It is believed civil servants simply could not prove Miss DiSanto was involved in polygamy when they tried to fight her appeal.
Ian Macdonald QC, president of the Immigration Law Practitioners’ Association, said: “There is no law against threesomes. For many people such a thing may be morally objectionable but it is not unlawful.
“I think the original decision to cite polygamy as a reason to refuse permission was probably that of a junior official which, further up the chain, was recognised to be unsustainable.
“It would have been kicked out by any court.”
Miss DiSanto, from Chicago, arrived in Britain on a visitor’s visa in December that year, already pregnant with Mr Caulfield’s baby. They met in April 2008, but it is not known how.
She gave birth to a daughter in July the following year and now lives with Mr Caulfield, 29, and his 28-year-old wife, who works as a nanny, in a three-bedroomed semi-detached property in Eltham, south-east London.
When her visa expired, she applied for permission to remain and claimed her family life would be disrupted if she was forced to leave.
The Home Office pointed out that she was at least three months’ pregnant with Mr Caulfield’s child when she came to Britain, which “cast doubt on your intention to leave in time”, and refused her application.
Officials said their decision was justified because “polygamy is illegal in the UK and the Secretary of State is entitled to prevent de facto situations arising which are akin to polygamous marriage”.
Miss DiSanto launched an appeal, which the Government won.
The American citizen then brought another appeal to the Upper Tribunal of the Immigration and Asylum Chamber.
There, judges were told Mr and Mrs Caulfield were no longer living as man and wife, but continued to share a home because their Odinist beliefs prevent them from divorcing.
Her lawyer argued the judge failed to take into account how their family life would be affected if she was required to go back to the United States and make a new visa application.
Upper Tribunal Judges Bernard Dawson and Catriona Jarvis ruled that it would be disproportionate to require her to leave Britain.
All three declined to comment on the court’s ruling.
A Home Office spokesman said: “We are disappointed by the court’s decision in this case.
“For too long Article 8 has been used to place the family rights of immigration offenders above the rights of the British public.
“This is why we will change the immigration rules to reinforce the public interest in seeing those who have breached our immigration laws removed from this country.”
The 2001 census recorded 40,000 pagans in Britain but it is not known how many of those categorised themselves as Odinist.
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