July.13.2018
Hong Kong’s top court has confirmed that the status of same-sex couples who have entered civil partnerships overseas is to be recognised when considering the grant of dependent visas.
In QT v. Director of Immigration (FACV 1/2018), decided on 4 July 2018, the Court of Final Appeal (CFA) decided that QT, the partner of a primary employment visa holder with whom she had entered a civil partnership in England some years before moving to Hong Kong in 2011, was entitled to live and work in Hong Kong as a dependent.
The main issues before the Court were whether there was differential treatment of QT, as compared to a married heterosexual spouse, which was discriminatory, and if so whether that treatment could be justified.
The CFA rejected the Director’s argument that any differential treatment between QT and a married spouse would require no justification because there is an obvious difference between a partner to a civil partnership and a married spouse.
Among other reasons, the court noted that marriage and civil partnership are each a status recognised under English law, and whilst civil partnership is not called marriage it is in almost every other respect from the status of marriage. In a touching passage, the court noted that the Director had acknowledged that “… same-sex couples in an enduring relationship are well capable of having a relationship that is as loving as, or more loving than, that of many heterosexual couples”.
The CFA also dismissed the alternative argument that if justification was required, because the relevant policy involved indirect discrimination on the basis of sexual orientation, the court should not interfere unless it found that the relevant policy was manifestly without reasonable foundation.
The CFA took the view that there was no rational connection between the policy of admitting a spouse as a dependent only if he or she was party to a monogamous marriage consisting of one male and one female, and the aims of attracting foreign talent and maintaining strict immigration control.
It ran counter to the aim of encouraging talent to join the Hong Kong workforce, since a person with the necessary talent or skills could be straight or gay. It also failed to promote the legitimate aim of strict immigration control.
This was a high profile case. A number of financial institutions and law firms had unsuccessfully attempted to intervene to draw the court’s attention to the fact that the policy had the effect of limiting the pool of foreign employees from which employers might wish to select, and that this would adversely affect their interests as well as the wider interests of Hong Kong. Amnesty International also attempted to intervene.
In the result, which will be welcome to all employers of overseas talent, the judgment has reversed a policy discriminating on the basis of sexual orientation, although the decision does not change the law that same-sex couples have no right to marry under Hong Kong law.