30 July, 2018
In the landmark decision of QT v Director of Immigration [2018] HKCFA 28, the Court of Final Appeal (CFA) held that the same-sex partner of a person with Hong Kong employment visa is entitled to enter Hong Kong under a dependant visa.
Background
QT entered into a same-sex civil partnership in England with SS. SS was granted an employment visa to work in Hong Kong. QT, however, entered Hong Kong as a visitor and as a result could not work here. This was because she had been refused a dependant visa by the Director of Immigration (Director), who stated that a dependant had to be a husband or wife who would join his or her resident spouse and “the existing immigration policy of spouse as a dependant is based on…the concept of a married couple consisting of one male and one female” (Policy).
QT challenged the Policy, arguing, amongst other things, that the Policy was unreasonable in public law as it was discriminatory against her on sexual orientation grounds that were not justified.
Discriminatory treatment
The Director argued that the differential treatment between QT and a married spouse under the Policy required no justification, as there was an obvious difference between a partner to a civil partnership and a married spouse.
The CFA rejected this argument, for the following reasons:
- As against QT’s question: “Why am I treated less favourably than a married person?” the Director was essentially saying: “Because that person is married and you are not”. This is a circular argument and hardly satisfactory.
- Although, in its name, civil partnership is not officially marriage, in almost every other respect it is indistinguishable from the status of marriage.
- The authorities relied on by the Director do not support his argument.
The CFA also rejected the lower court’s observation that “privileged treatments to married couples required no justification as there were certain core rights and obligations to a relationship of marriage”. In the CFA’s opinion, the lower court was in essence asserting that homosexual couples were subject to differential treatment because they were not married and the benefit they were claiming was a “core right” reserved uniquely for those who were married. This was again circular and would give rise to a subjective, fruitless debate as to what would fall within the “core”. A person’s marital condition cannot determine presumptively that discrimination does not exist.
Thus the CFA held that the differential treatment required justification. The Director accepted that, in such a case, the Policy would involve indirect discrimination on the basis of sexual orientation.
Justifications
The Director argued, however, that if there was discrimination, such discrimination was justified, stating that the Policy served two aims:
- The encouragement of persons with needed skills and talent to join the workforce in Hong Kong, accompanied by their dependants; and
- Maintaining strict immigration control with bright demarcating lines between married and unmarried couples.
The CFA ruled that the Policy was not rationally connected to the first aim as a person who had the needed skills and talent could be straight or gay. It was also difficult to see how the Policy was rationally connected to the second aim. Although the Director had in mind the convenience of drawing a demarcating line based on production of a marriage certificate, the conditions of eligibility under the Policy included “reasonable proof of a genuine relationship between the applicant and the sponsor”. Even purely at the level of convenience, QT and her partner were just as conveniently able to produce their civil partnership certificate.
The CFA also observed that, although it was not necessary to decide on such a point, the appropriate standard of review in this case was whether the Policy went beyond what was reasonably necessary to attain legitimate aims.
Accordingly the CFA held that the Policy was unreasonable in public law and not justified.
Comments
In the light of the CFA’s decision, the Policy will have to be amended to accommodate dependants who are same-sex spouses or civil partners from other jurisdictions. As the CFA has ruled in favour of same-sex civil partners, this could also lead to a change in policy to admit heterosexual civil partners as dependants. The scope of the amended Policy remains to be seen but in the meantime, employers could look forward to witnessing more talents enter Hong Kong’s workforce as a result of the decision.
For further information, please contact:
Vickie Leung, Deacons
vickie.leung@deacons.com.hk
