13 April, 2018
In the case of QT v Director of Immigration (CACV 117/2016), the Court of Appeal unanimously ruled that the denial of the application for a dependant visa by a same-sex partner amounted to unlawful discrimination based on sexual orientation. QT had entered into a civil partnership with her same-sex partner in England. Her application for a dependant visa was declined by the Director of Immigration. Under Hong Kong laws, only a spouse or a child under the age of 18 of a person who is working in Hong Kong may apply for a dependant visa. The Director of Immigration refused the dependant visa application on the ground that QT and her same-sex partner are not “spouses” because such would contravene Hong Kong law, which defines marriage as “monogamy and the concept of a married couple consisting of one male and one female”.
QT applied for judicial review but was unsuccessful in the Court of First Instance. On appeal, the Court of Appeal considered that, although there is no right to same-sex marriage in Hong Kong, using marital status as a condition to access other rights or benefits may still be discriminatory.
This position is supported by Article 25 of the Basic Law of Hong Kong, which grants every citizen in Hong Kong the right to equality before the law. Whilst the Court of Appeal acknowledged that the Immigration Department must strike a balance between attracting talented and skilled people and exercising stringent immigration controls, using someone’s marriage status to differentiate people when a case falls outside the areas of life involving core rights and obligations unique to the status of marriage requires justification. The Court concluded that it was irrational for the Director of Immigration to refuse QT’s application for a dependant visa on the sole ground that she and her partner were of the same sex. The Court also held that the nature of a dependant visa such is that it enables the applicant to stay in Hong Kong in the capacity as a dependant with conditions attached. It does not, as the Director of Immigration attempted to argue, have the legal effect of the Director of Immigration recognising the validity of the union of relationship between the applicant and the sponsor (be it heterosexual or homosexual) under Hong Kong law. Further, although the Director of Immigration argued that the Immigration Department uses marriage as a criterion for setting eligibility requirements for administrative workability and convenience, the Court countered that the level of administrative workability and convenience does not differ between heterosexual and homosexual couples.
For the above reasons, the Court of Appeal determined that the Director of Immigration failed to establish how the marital status requirement is rationally connected to the aim of striking a balance between the need to attract talent and exercise stringent immigration control. It therefore failed to justify the indirect discrimination on the ground of sexual orientation that QT suffered.
For further information, please contact:
Samantha Cornelius, Linklaters
samantha.cornelius@linklaters.com
