1 November, 2017
Recently, a lesbian expatriate has won a landmark appeal in the Court of Appeal (CA) case in QT v. Director of Immigration CACV 117/2016 (Judgment handed down on 25/09/2017) against the Immigration Department (ImmD) for refusing to grant her a dependant visa to join her sponsor with whom she was in a same-sex British civil partnership. This case, together with the HC’s decision in Leung Chun Kwong, showcase a general shift of the Hong Kong court’s stance towards greater protection for lesbian, gay, bisexual and transgender (LGBT) rights and may open the door to more dependant visa applications by same-sex couples in a civil partnership and same-sex spouses.
Background
QT entered into a civil partnership with her same-sex partner, SS, in England. SS later came on employment visa to work in Hong Kong. QT then applied to the ImmD for a dependant visa with SS as her sponsor.
The Director of ImmD (Director) rejected QT’s application on the ground that she was not a “spouse” within the meaning of the Hong Kong immigration policy (Policy) as only heterosexual marriage is recognized under the Hong Kong law, she therefore failed to meet the eligibility requirement for a dependant visa (Eligibility Requirement) (Decision).
QT lodged a judicial review over the Decision but failed at the Court of First Instance. QT appealed to the CA, arguing that the Decision and the Policy were unlawfully discriminatory based on her sexual orientation in breach of article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights.
Court of Appeal decision
While acknowledging the Director’s wide margin of appreciation and control over immigration matters, the court would still scrutinize his decisions with intensity where it offends Hong Kong’s core values, including differential treatment based on personal characteristics such as sexual orientation.
Applying the four-step proportionality test, the court first held that the Eligibility Requirement based on marital status constitutes indirect discrimination on the ground of sexual orientation as it puts homosexual unmarried couples at a serious disadvantage as compared to heterosexual unmarried couples – homosexual unmarried couples cannot legally get married in Hong Kong and thus cannot meet the Eligibility Requirement under the Policy. The court proceeded to agree that the Eligibility Requirement serves a legitimate aim of balancing between attracting talented skilled people to live and work in Hong Kong on the one hand, and maintaining a system of effective and stringent immigration control on the other.
The CA nonetheless considered the Eligibility Requirement is irrationally connected to the legitimate aim, thereby concluding the differential treatment based on sexual orientation is unjustified. In rejecting the Director’s argument that he was entitled to follow the legal definition of marriage in Hong Kong in setting the Eligibility Requirement, the court held that a dependant visa is only a privilege conferred on the applicant to stay in Hong Kong which would not go so far as recognizing the validity of same-sex union or marriage under Hong Kong law. The court also considered the Director’s argument of administrative workability and convenience unfounded, stating that the existence and proof of the relationship would apply similarly to unmarried homosexual couples whose relationship is however legalized in the form of civil partnership or same-sex marriage, and legally married heterosexual couples alike.
As such, the court allowed QT’s appeal.
Comment
Despite the wide margin of appreciation enjoyed by the Director in formulating and applying immigration policies, the court would not refrain from scrutinizing his decision if it unjustifiably offends an individual’s inherent personal characteristics. This decision may have an impact on the future application of immigration policies by the Government.
More same-sex couples in civil partnership and same-sex spouses may apply for dependant visas in Hong Kong. That said, the decision may have a limited impact on the private sector unless the Government takes an initiative to review its current application of public policies and set an example or to introduce specific LGBT legislation.
For further information, please contact:
Vickie Leung, Deacons
vickie.leung@deacons.com.hk
