In a recent landmark decision of Director of Immigration v QT [2018] HKCFA 28, the Court of Final Appeal (the “CFA”) clarified that dependants of same-sex civil partners holding valid employment visas to work in Hong Kong may be entitled to dependant visas in Hong Kong.

 

QT and her partner, SS, entered into a same-sex civil partnership in England under the Civil Partnership Act 2004 in 2011. SS was subsequently offered employment in Hong Kong and was granted an employment visa. QT entered Hong Kong as a visitor and as such, was not permitted to work in Hong Kong. QT had unsuccessfully applied for a dependant visa as the Director of Immigration (the “Director”) refused her application on the basis it was “outside the existing policy” because she is not considered as a dependant in a monogamous marriage consisting of one male and one female (the “Policy”). QT subsequently launched legal proceedings against the Director, and the case eventually ended up in the CFA for final adjudication.

 

Among other grounds, QT argued that the decision of the Director was unreasonable in public law as it was discriminatory against her on grounds of sexual orientation which were not justified. In relation to the decision of the Director, the two main issues argued were (i) whether there was differential treatment of QT which was discriminatory and (ii) if so, whether such treatment could be justified.

 

Whether justification was required for the differential treatment

 

The Director argued that under the Policy, no justification was required for the differential treatment between QT and a married spouse, as there is an obvious difference between a partner in a civil partnership and a married spouse. The Policy only confers benefits of a dependant visa on spouses of a valid marriage under Hong Kong law.

 

The CFA rejected the Director’s argument for three reasons:

 

1. The circularity of the Director’s argument to QT’s question of why she was treated less favourably to a married person, to which the Director answered, “because that person is married and you are not”, was hardly satisfactory.
2. The Director’s assertion that there is an obvious difference between marriage and civil partnership was an untenable basis for excluding the Policy’s justification. Under English law, although civil partnership is not classified as a marriage, it is indistinguishable from the status of marriage.
3. The authorities relied on by the Director did not support the argument that marriage creates a special status and married couples merit different treatment simply by their marital status.

 

The CFA took the view that the Court of Appeal erred in its suggestion that there are certain “core rights and obligations” unique to marriage and differential treatment of those not party to a marriage cannot be regarded as discriminatory and requires no justification. The CFA held that the approach was circular and would only give rise to fruitless debates as to what falls within the “core”.

 

Whether the differential treatment was justified

 

The CFA held that the differential treatment of QT would require justification. The Director accepted that the Policy would involve indirect discrimination based on sexual orientation.  However, the Director argued that the differential treatment was justified, as the Policy aims to attract foreign talent to join the Hong Kong workforce with their dependants while maintaining strict immigration control, such as by drawing “bright lines” between married and unmarried couples to promote legal certainty and administrative convenience.

 

The CFA held that there was no rational connection between the Policy and the two aims, and instead, the Policy ran counter to the first aim of encouraging talent since an individual with the desirable talent or skill could be heterosexual or homosexual. The CFA also ruled that the differential treatment of QT based on the aim of promoting administrative convenience was irrational as QT and SS could conveniently produce their civil partnership certificate as a married heterosexual couple could produce their marriage certificate.

 

The CFA ruled that the differential treatment was not justified and unanimously dismissed the appeal.

 

As a result of the decision, the Policy is currently under review by the Immigration Department. Pending the completion of the review, the Immigration Department has implemented an interim arrangement for applications from dependants of foreign legally recognised same-sex relationships.

 

Subject to meeting the prevailing eligibility criteria of the Policy, dependants of foreign legally recognised same-sex relationships will be granted permission to remain in Hong Kong for 12 months or a period in line with their sponsors’ limit of stay, whichever shorter. During the said period, dependants may take up employment, establish or join in business or study in Hong Kong without obtaining prior permission from the Director.

 

This provides more certainty to the recognition of the CFA’s decision in Hong Kong.  Although it appears that the application process and documents required will largely be the same as for a standard dependent visa application, this may evolve once their review is complete.

 

Lastly, the Immigration Department has stated that whilst the arrangement does not pre-empt the way forward of the review, it should not be regarded as giving legal recognition to same-sex relationships in Hong Kong.

 

For more information on immigration matters, please contact

 

Lesley McLean | Partner | lamclean@robertsonshk.com | +852 2861 8404 (office)