Labour Leader: Landmark same-sex visa judgment in Hong Kong’s Court of Final Appeal

The judgment represents a victory for same-sex couples wishing to live and work in Hong Kong, but is it a standalone triumph for the LGBT community or will it have wider ramifications?

In a judgment handed down on 04 July 2018 (QT v Director of Immigration), the highest court in Hong Kong has found that the Hong Kong Director of Immigration (the Director) acted unlawfully by not allowing same-sex spouses dependant visas.

Hong Kong does not have civil partnerships or same-sex marriage. The decision means that, for couples who have entered into a same-sex marriage or civil partnership outside Hong Kong and who wish to live and work in Hong Kong, where one of the couple is granted an employment visa (or is a permanent resident), the other will now be eligible for a dependant visa.

A brief synopsis of the claim and its history

QT and SS had entered into a same-sex civil partnership in England. When SS was offered employment in Hong Kong in 2011, the couple relocated. QT entered Hong Kong as a visitor, whilst SS was granted an employment visa.

QT applied for what is known as a dependant visa in 2014. Her application was rejected by the Director based on immigration policy, which defined a “spouse” as someone of the opposite sex in a monogamous marriage. This excluded same-sex couples such as QT and SS.

QT challenged, arguing that the policy was unreasonable in the public law sense as it was discriminatory against her on sexual orientation grounds that were not justified. Her judicial review was dismissed by the Court of First Instance but allowed by the Court of Appeal. The Court of Final Appeal dismissed the Director’s subsequent appeal, rejecting the contention that same-sex couples could not validly be compared to married, opposite-sex couples for the purposes of immigration policy.

(On a technical note, Hong Kong’s anti-discrimination laws do not (currently) expressly recognise sexual orientation as a protected characteristic. This did not impact on this case, which was a judicial review of the exercise of a statutory power by a government body. It is a tenet of administrative law that statutory powers must be exercised fairly and rationally, and the principle of equality is an important aspect of such rationality.)

The final verdict

This judgment ended a four-year legal dispute and brings long-awaited clarity, not only for the LGBT community in Hong Kong but also for employers who are keen to attract the broadest range of talented and skilled workers.

The decision focused on the question of whether the difference in treatment between same-sex couples and opposite-sex couples was justified. In its judgement, the Court of Final Appeal addressed three stated aims of the immigration policy, proffered by the Director as follows:

  • The first aim of the Director’s immigration policy was to ensure that Hong Kong attracts people with the right talent and skills by giving them the choice to bring their dependants to live with them.

    The court noted major difficulties encountered by the Director in justifying a difference in the treatment of same-sex couples, based on what was accepted as the legitimate aim of encouraging talented individuals to relocate to Hong Kong. The court stated that once it was accepted that a person may be heterosexual or homosexual, it was hard to follow the logic of the Director’s attempted argument that only dependants who are heterosexual and viewed as legally married under Hong Kong law may be granted a dependent visa.

  • The second policy objective was to balance the first purpose with maintaining Hong Kong’s strict policy of immigration control, via necessarily stringent eligibility criteria.

    The judges found similar difficulty in determining how the exclusion of same-sex dependants promoted the legitimate aim of strict immigration control. The court deferred to the Court of Appeal’s explanation that Hong Kong’s strict immigration policy, in this context, was designed to limit each foreign worker to bringing only one spouse to join him or her in Hong Kong, but noted that whether that spouse was heterosexual or homosexual could not possibly be relevant.

  • The final limb of the policy aimed to facilitate the administration of immigration controls by laying down clear “bright lines” to determine which categories of person be allowed into Hong Kong.

    The benefit of having clear lines of determination was found to be acceptable in principle but that administrative discretion should not be curtailed by “hard-edged rules”. The judgment refuted the argument that the convenience of pointing to a marriage certificate could not be replicated just as easily by producing a civil partnership certificate.

After analysing each of the Director’s policy objectives, the Court of Final Appeal concluded that the policy of limiting dependent visas to same-sex spouses could not be justified as a measure rationally connected to “talent”, “immigration control” or “bright line” aims.

What are the implications for employers in Hong Kong?

Hong Kong’s international business community made its position clear when, earlier this year, a group of financial institutions and law firms applied for leave to file written submissions in support of the Court of Appeal’s judgment. Although these applications were refused, the action demonstrated strong support amongst the financial services and legal sectors for a change in policy.

Following the decision, employers who are seeking to recruit talent from outside Hong Kong will at last be able to give all applicants reassurance that they will be able to bring their spouses and civil partners with them. It should, however, be noted that the position has not changed for “de facto couples” (ie couples who live together but are not legally married or have not entered into a legal civil partnership), who remain ineligible for dependant visas.

Will there be wider ramifications?

Whilst the court concluded that the Director’s assertion that an obvious difference exists between heterosexual marriage and a civil partnership rested on “shaky foundations”, the judgment also emphasised that the case did not address any claim that same-sex couples have a right to marry under Hong Kong law.

This decision is also in contrast to another recent Hong Kong decision, in Leung v Secretary for the Civil Service. In that case, the same Court of Appeal judges as had accepted QT’s arguments a few months previously held that the Hong Kong government, as a “custodian of Hong Kong’s prevailing socio-moral values”, was justified in refusing to grant spousal benefits to employees in same-sex marriages, based on the legitimate aim of protecting the institution of traditional marriage. Notably, this argument had not been cited by the Director to support its position in the QT case, so it had not been considered by the Court of Appeal in the earlier case. Following the decision in Leung, the Director in QT did seek to introduce a similar ‘legitimate aim’ argument at the Court of Final Appeal but the Court accepted QT’s objection that she had not had any opportunity to consider or respond to the new argument either evidentially or in written submissions; and so the Director’s case had to turn on the three aims referred to above.

It is natural to hope that the QT decision will bear wider ramifications beyond its immigration context. Notwithstanding Leung, the decision has been lauded as a long overdue advancement of same-sex rights in Hong Kong. Jan Wetzel, senior legal adviser at Amnesty International, labelled the judgment a “milestone for Hong Kong and a watershed moment”.1

The official response from the Hong Kong government has been reserved, with Secretary for Security John Lee Kachiu stating that the government respected the court’s decision and would study the judgment in detail, “seeking legal advice as necessary on follow-up actions”.2

How does Hong Kong match up to other places?

The judgment has brought into focus how the position in Hong Kong differs from other jurisdictions. By way of comparison, we have considered two examples, that of the UK and Australia.

Australia

Upon legalisation of same-sex marriage in Australia in December 2017, changes to visa applications followed. An individual in a same-sex marriage may now apply for a visa as a partner’s “spouse” (rather than, as previously, as a “de facto partner”). Australia also permits an applicant in a co-habiting relationship (whether same-sex or not) to apply where the applicant can show a mutual commitment to shared life and that the relationship has been in existence for over 12 months.

UK

Same-sex marriage was legalised in England & Wales in 2013, and in Scotland in 2014. Similarly to Australia, the UK permits a broad pool of applicants for visas, including couples in a marriage or civil partnership and those who have co-habited for at least two years (whether same-sex or not).

Concluding thoughts

Hong Kong’s progress in recognising and protecting the rights of the LGBT community has been undoubtedly fragmented and slow-moving, with very limited legislation in this area, to date. It is hoped that this decision will be looked back at in the future as a turning point for Hong Kong. It may prove to be the first step in embracing diversity in the workplace and recognising its immense value in attracting the best talent from an increasingly competitive international pool.


1 The New York Times, ‘Same-Sex Couples Entitled to Equal Visa Rights, Hong Kong Court Says’, 04 July 2018.
2 The Government of the Hong Kong Special Administrative Region Press Releases, ‘Government respects Court of Final Appeal’s judgment concerning dependant immigration policy’, 04 July 2018.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document. Simmons & Simmons is registered in China as a foreign law firm. We are permitted by Chinese regulations to provide information on the impact of the Chinese legal environment and also to provide a range of other services. We are not admitted to practise in China and cannot, and do not purport to, provide Chinese legal services. We are, however, able to co-ordinate with local counsel to issue a formal legal opinion should this be required.