No legal difficulties in Hong Kong extending benefits to all gay dependants, court hears

Recent immigration policies for same-sex partners of consular officials to enter Hong Kong as dependants show there are no practical or legal difficulties in extending such benefits to all gay dependants, a court heard on Thursday.

The argument emerged in a landmark appeal lodged by a lesbian – identified only as QT in court – against a failed judicial review to challenge the Immigration Department for equal rights to a dependant visa.

Hong Kong’s present policy is that only spouses and unmarried dependent children under 18 may apply for dependant visas to join their sponsors working in the city. That effectively excludes QT, whose civil partnership sealed in the United Kingdom six years ago is not recognised because marriage is defined locally as monogamous and heterosexual.

Dinah Rose QC claimed her client faced a discriminatory practice in contrast with a separate government policy introduced last June by which same-sex spouses and civil partners of consulate officials would now be permitted to stay as dependants with visa fees exempted.

The arrangement does not imply recognition of gay unions nor does it affect domestic legislation, she said, but it undermines the government’s justification in the present proceedings.

“It illustrates there is no practical or legal difficulty at all in extending [recognition] to all same-sex dependants,” she told the Court of Appeal.

Rose said the original presiding judge was mistaken in finding the immigration director would be validating gay marriages by granting the visas. She claimed the question for the court was whether it was justified for the director to differentiate between those who had a valid marriage and a civil partnership.

“Where access to a benefit is conditional to heterosexual marriage, to the extent that excludes gay couples from that benefit, the exclusion must be justified,” Rose said.

Yet she pointed out that no justification had been offered by the director, despite her client being able to prove her partnership was in every sense like a public and intimate union of spouses – except that it was not recognised in Hong Kong.

Drawing an argument from 12 leading financial institutions that failed to intervene in the case earlier, Rose said such a handling deterred gay people from working in the city, making the policy a bar to attracting talent.

“Sometimes ... the humanity of the appellants can be forgotten,” she said. “Talented people tend to be married to talented people, and the sacrifice they have to make is for them to sacrifice their whole career for the entire period while their partner is in Hong Kong or to separate from their partner.”

But Monica Carss-Frisk QC, for the director, countered that justification was not necessary in the first place. Carss-Frisk said the case hinged on whether it was rational to draw the line at marriages in light of the government’s strict immigration policies.

She added the government needed “clear and workable rules” – the result of which treated unmarried heterosexual couples the same as homosexual couples in visa applications.

Marriages, she said, enjoy a special legal status and the government was entitled to attach certain rights to them such as dependant status for immigration purposes.

“Because marriage is all about that, marriage is about closeness to a person,” she said. “That is at the heart of it.”

The two-day appeal hearing continues before chief judge Mr Justice Andrew Cheung Kui-nung, Mr Justice Johnson Lam Man-hon and Mr Justice Jeremy Poon Shiu-chor.