Legal entitlements of Hong Kong’s same-sex couples unlikely to change, experts say

Landmark court ruling over spousal visa welcomed by supporters, but lack of anti-discrimination laws means changes require time

PUBLISHED : Wednesday, 27 September, 2017, 8:17am
UPDATED : Monday, 27 November, 2017, 6:55pm

The decision to grant a spousal visa to a gay woman has been welcomed by business groups and banks and heralded as a mood change on LGBT rights in Hong Kong – but it won’t affect the legal entitlement of same-sex couples to other benefits, according to experts.

On Monday, the Court of Appeal unanimously ruled that a British expat, identified only as QT, would be given a dependant visa through her same-sex partner who works in Hong Kong – an immigration status previously granted only to heterosexual spouses.

QT, a British citizen, entered into a civil union in England just months before she moved to Hong Kong in 2011 with her partner SS, who had been offered a job in the city.

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She applied for a judicial review after the Immigration Department rejected her application for a spousal visa, then appealed after losing her case at the Court of First Instance.

Gay marriage is not legal in Hong Kong, and there are no anti-discrimination laws over sexual orientation. The case sets a precedent which suggests other same sex spouses will also be eligible for a dependant visa, unless the Immigration Department appeals the decision or is able to find a loophole in applying the decision.

Duncan Abate, an employment lawyer at the Hong Kong office of global law firm Mayer Brown JSM, said Monday’s “brave and forward-thinking” decision was “to be applauded”.

“It is a clear indication to the community generally that this is a direction in which the government has to be moving,” he said.

“With this case, there is going to be a change in the mindset of Hong Kong employers ... It’s genuinely excellent that the courts are leading social change.

“It is following a global trend towards openness [towards] the LGBT [community], and I am fairly confident we will see an increasing number of employers, particularly those from larger companies, adopting a more open-minded approach.”

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But Abate said it was “absolutely not true” that same-sex couples were now on level footing with heterosexual couples after the judgment, noting that the city still had no sexual orientation anti-discrimination laws, and the ruling had not changed the legal definition of a “spouse”.

The ruling also did not give individual employees a claim against their employers, he said.

Andrea Randall, a partner at Hong Kong-based law firm Gall, said Hong Kong employers were leading the change on improving rights for same-sex workers.

“This ruling now puts significant pressure on the Hong Kong government to conform with international norms to enact legislation to protect LGBT rights,” she said.

But Hong Kong University law professor Rick Glofcheski agreed that companies probably would not have to extend benefits that heterosexual couples enjoyed to same-sex couples despite the ruling.

The Post reached out to a number of the city’s major employers, including airlines Cathay Pacific Airways and Hong Kong Express, MTR Corporation, and banks HSBC, Bank of China (Hong Kong) and Standard Chartered, for comment on how the decision could affect their policies.

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Standard Chartered said it did not wish to comment, while HSBC – which attracted controversy for its pro-LGBT rainbow-coloured lions last year – said its “commitment to diversity and inclusion helps attract, develop and retain employees”.

A spokeswoman for MTR said spouses of employees could enjoy free rides and medical insurance regardless of their sexual orientation, as long as they could provide a valid marriage certificate.

The American Chamber of Commerce, the British Chamber of Commerce in Hong Kong and the Australian Chamber of Commerce Hong Kong and Macau all welcomed the decision.

“This decision widens the talent pool, and it allows people to think of Hong Kong as a competitive place to do business,” American Chamber of Commerce president Tara Joseph told the Post.

Joseph had heard of same-sex spouses from a variety of sectors “regularly” encountering visa problems, and even knew of senior executives deciding against coming to Hong Kong as they had issues bringing their partners.

This decision widens the talent pool, it allows people to think of Hong Kong as a competitive place to do business
Tara Joseph, American Chamber of Commerce

“Attracting, retaining and engaging in a competitive talent pool is a key priority for companies operating in Hong Kong. The current immigration policy has the potential to be a significant obstacle in achieving this.”

On Tuesday, 12 financial institutions – including banking giant Goldman Sachs – which had previously offered to support QT during her legal battle released a statement welcoming the decision.

“This is a major victory for Hong Kong – it is not just about diversity and inclusion but also equality,” the banks said.

“We believe the ability to attract world class talent, regardless of their gender, sexual orientation, gender identity or background, is essential for maintaining Hong Kong’s competitiveness as a pre-eminent global financial centre.”

In Monday’s ruling, Mr Justice Andrew Cheung Kui-nung said the Immigration Department’s differential treatment for same-sex spouses was not “rational”.

“Excluding the foreign worker’s lawfully married (albeit same‑sex) spouse or civil partner under a civil partnership lawfully entered into in a foreign country from coming to Hong Kong to join the worker is, quite obviously, counterproductive to attracting the worker to come to or remain in Hong Kong to work in the first place,” he wrote.

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“Equally plainly, excluding such a spouse or civil partner from entering or remaining in Hong Kong does not advance or help maintain our strict, stringent immigration policy.”

The case follows a High Court ruling in April entitling a gay civil servant’s spouse to the same benefits as his heterosexual colleagues. The Department of Justice is appealing the decision.

About two dozen countries around the world currently allow gay and lesbian couples to marry, according to American think tank Pew Research Centre.

Singapore – often considered Hong Kong’s major rival in the region – does not recognise same-sex relationships and does not usually issue dependant visas to same-sex spouses. Sex between two men is still illegal in Singapore.

In Japan, where same-sex marriage is not legal, foreign same-sex spouses can get “designated activities” visas which list them as a dependant of their partners.