HONG KONG: COURT OF FINAL APPEAL REJECTS POLICY ON DEPENDANT SPOUSAL VISAS FOR SAME-SEX COUPLES

A landmark decision of the Hong Kong Court of Final Appeal (CFA) has upheld the decision of the Court of Appeal (discussed here) that the Hong Kong Director of Immigration's policy of refusing to grant dependant visas to same sex spouses is discriminatory and not justified (QT v Director of Immigration [2018] HKCFA 28).

Background

QT is a British national. In 2011 she entered into a same-sex civil partnership with her partner SS in England. Later that year the couple moved to Hong Kong, where SS had an employment visa.

After making a series of unsuccessful applications for a dependant visa, QT challenged via judicial review the decision of the Hong Kong Director of Immigration refusing her application.

The Director found QT ineligible to be considered for a dependant visa on the basis that she was “outside the existing policy”, which was to admit a spouse as a dependant only if he or she was party to a monogamous marriage consisting of one male and one female.

QT argued that the Director’s decision based on the policy was unreasonable, in the public law sense, as it was discriminatory against her on sexual orientation on grounds that were not justified. At first instance, QT’s application for judicial review was dismissed. However, the Court of Appeal unanimously allowed QT’s appeal.

The Director argued that the rationale underpinning the existing policy was two-fold:

1. to encourage persons with needed skills and talent to join the workforce in Hong Kong, accompanied by their dependants; and
2. to maintain a system of effective and stringent immigration control.

While the Court of Appeal accepted that these were both legitimate policy aims, it found that the policy of restricting access to visas for same-sex couples was not logically connected to those legitimate aims. The Director appealed this decision to the CFA.

Decision

The two main issues before the CFA were as follows:

1. whether there was differential treatment by the Director of QT which was discriminatory; and
2. if so, whether that discriminatory treatment was justifiable.

Discriminatory differential treatment

The Director argued that there was an obvious difference between a marriage and a civil-partnership, in that only one is legally recognised under Hong Kong law. The Director therefore contended that this entitled him to adopt the policy of treating them differently. The CFA rejected this argument on three grounds:

1. it is inherently circular, using the criterion for differentiation as the internal justification for the policy. The Director was stating that the reason he was treating QT less favourably than a married person was because she was not married;
2. the stated 'obvious differences' between civil partnerships and marriages were not borne out (as they were essentially indistinguishable); and
3. the cases cited by the Director to support his position did not do so.

On this basis, the CFA held that the Director had failed to demonstrate that the policy did not require justification.

The Director's justification

The Director accepted that, if the differential treatment of QT required justification (which the CFA held that it did) then the policy would constitute indirect discrimination, as same-sex couples could not enter into a marriage legally valid under Hong Kong law (so it was impossible for QT to bring herself within the Director's policy).

The CFA held, in agreement with the Court of Appeal, that there was no rational connection between the Director's stated aims in pursing the existing policy and the policy itself.

To the contrary, the CFA held that the policy clearly ran counter to the first stated aim of encouraging talent to come to Hong Kong, as that 'talent' could clearly be homosexual just as it could be heterosexual. The CFA equally found it difficult to comprehend how excluding bona-fide same-sex civil partners of individuals granted employment visas due to their 'needed skills and talent' could be said to achieve the aim of 'stringent immigration control'.

Due to the CFA's conclusion that there was no rational connection between the stated aims of the policy and the actual policy itself, the CFA found it unnecessary to decide whether the differential treatment was proportionate in achieving the legitimate aims of the Director. The CFA therefore dismissed the Director's appeal.

Wider LGBT rights in Hong Kong

In Hong Kong, neither the Basic Law nor the Bill of Rights create rights or causes of action for individuals against other private individuals or entities.

Furthermore, in their present form, none of the legislation prohibiting discrimination (including in the workplace) provides protection on the grounds of sexual orientation. Accordingly, individuals from the LGBT community are left to rely on their employers (despite not being legally required to do so) adopting internal policies and procedures which prohibit discrimination on the grounds of sexual orientation for such protection.

The SAR's Constitutional and Mainland Affairs Bureau recently issued a Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation (found here).

The Code covers good practices in different aspects of employment such as recruitment, promotion, transfer, training, dismissal and grievance handling. The Code is designed to assist employers and employees in eliminating discriminatory practices and behaviour in employment and promoting equal employment opportunities among all persons, irrespective of their sexual orientation.

Whilst the Code is non-binding, it is a positive step for LGBT rights in Hong Kong and has been adopted by over 300 local and international employers, including many of the SAR's largest employers. (a list of those that have signed up to the code can be found here).

Key takeaways

The CFA decision will be welcomed by employers who struggle with issues of same-sex dependant spousal visas in recruiting international talent. Employers could also benefit from familiarising themselves with the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation, and comparing this to their own internal policies and procedures.

Although the case is a step forward for LGBT rights in Hong Kong, the reasoning of the CFA was not predicated on any intrinsic protections for LGBT individuals under Hong Kong law. The CFA held that QT was successful due to the Director's lack of adequate justification for the policy. This therefore reminds us that there is still some way to go until LGBT individuals in Hong Kong receive the same kind of protection under the law as they do in other countries, such as the UK or Australia.

Herbert Smith Freehills is proud to have lent its support to QT's case. Working with 15 other law firms,15 financial institutions and Amnesty International, the firm applied to intervene in support of QT's case on the grounds that the policy affected our ability to recruit the best LGBT talent to work in Hong Kong. While the CFA did not accept the intervention, the judges did reference our groups' arguments in their decision.