Letter of the Law: Denial of same-sex-spouse dependant visas hurts both couples and Hong Kong
Court dismissal of a discrimination case involving a lesbian couple brings out the urgent need for legislation on sexual orientation
By Dr Suen Yiu-tung
Hong Kong is known to pride itself as “Asia’s world city”, an international hub that welcomes all talented people from overseas.
However, the High Court judgment that ruled against QT on March 11, 2016 seems to suggest that if that person happens to be in a same-sex relationship, he or she will not be welcome in Hong Kong.
Two lesbian women, QT and SS, are a couple in a legally recognised civil partnership in Britain. While SS was offered a job in Hong Kong and was subsequently granted a work visa, QT’s application for a dependant visa was rejected. She was instead only granted a tourist visa. She therefore has no right to work, has to leave the city every six months and faces uncertainty every time she returns to Hong Kong that her visa may not be renewed.
QT mounted a judicial review against the Immigration Department, claiming that the rejection by the Immigration Department was discriminatory on the ground of her sexual orientation and therefore unconstitutional. The High Court ruled against QT.
QT and SS are not alone in facing visa issues in coming to Hong Kong. In the Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status commissioned by the Equal Opportunities Commission, I interviewed many lesbian, gay, bisexual, transgender and intersex people, including same-sex couples who had entered into legally recognised relationships in other jurisdictions either in the form of civil partnerships or same-sex marriages and moved to Hong Kong.
In such same-sex relationships, when one person was granted a work visa to move to Hong Kong, the person’s legal partner is always refused a dependant visa.
Such treatment hurts the couple in question and it hurts Hong Kong.
It was found in the study that where the partner was denied a dependant visa and only held a visitor/tourist visa, the partner would then subsequently be unable to work in Hong Kong, open a bank account, register for a mobile phone contract and not have any of the other rights of residents such as access to public health care. As a result, they reported feeling very much isolated in Hong Kong society. This clearly discriminates against people in relationships purely because of their sexual orientation.
For many such same-sex couples, it was reported that enormous pressure was put on their relationship. It was described that many such relationships were at breaking point because of the pressure involved, and in some cases this led to some couples breaking up. One gay couple said their experience was so “traumatic” that they regretted making the decision to move to Hong Kong.
This discriminatory policy and impact on such couples is one of the reasons that the study recommended that the government should as soon as possible conduct a public consultation on introducing anti-discrimination legislation on the grounds of sexual orientation, gender identity and intersex status.
Denying dependant visas to same-sex spouses also hurts the ability of Hong Kong businesses to recruit people with the appropriate talent and skills to work here. The denial of a dependant visa for employees with partners also severely impacts on the likelihood of businesses being able to retain employees. It basically sends a message that gay men and lesbians from overseas, no matter how talented they are, are not welcome in Hong Kong.
The local and global business community has been increasingly vocal on LGBT issues. Why is that the case? On one hand, it is motivated by some businesses’ recognition that diversity and inclusion is a good thing to do in itself. But on the other hand, the businesses are thinking more about the bottom line. They realise that in order to recruit and retain the best talent, they need to embrace diversity, including LGBT people.
At a country level, research from the Williams Institute at the University of California Los Angeles has demonstrated the negative impact of discriminatory treatment of LGBT people on economic development in 39 emerging economies and other selected countries.
It therefore seems only right that the Hong Kong government should reconsider a practice that both hurts people working in and making valuable contributions to the city, and hurts Hong Kong’s ability to be a fully effective world city.
Suen Yiu-tung, DPhil, is assistant professor at the Chinese University and principal investigator and principal author of the Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status commissioned by the Equal Opportunities Commission