Hong Kong courts

Giving Hong Kong visas to same-sex spouses will undermine marriage’s status, Court of Final Appeal told

City officials employ recent judgment from case of same-sex spousal benefits, saying director of immigration was right to deny papers to unnamed British lesbian

PUBLISHED : Tuesday, 05 June, 2018, 7:33am
UPDATED : Tuesday, 05 June, 2018, 8:44am

The special status of marriage will be undermined if Hong Kong authorities give dependant visas to gay spouses, the director of immigration argued in appeal to the city’s top court on Monday.

The new argument was drawn from the fresh Court of Appeal judgment last Friday, which ruled in favour of the government denying gay employees access to spousal benefits after finding it had a legitimate aim to protect the institution of traditional marriage.

But Dinah Rose QC countered that it did not apply to the present case – of her client, a British lesbian denied a dependant visa – as she argued such a visa is not a spousal benefit and that it has “no rational link” to the city’s traditional values when it affects only foreign nationals.

She said her client was subject to a “particularly severe form of indirect discrimination, close to direct discrimination”.

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Chief Justice Geoffrey Ma Tao-li also questioned “whether the director of immigration is the right person to uphold values of marriage”.

“Indeed, My Lord,” Rose replied. “The claimant is not seeking to have her partnership recognised under Hong Kong law. All she is seeking is an immigration visa.”

Ma and his panel of four other judges at the Court of Final Appeal reserved judgment.

The case, which drew a full house in court, centred on the director’s refusal to grant the Briton, identified only as QT in court, a dependant visa after she moved to Hong Kong in 2011 with her partner SS, who had been offered a job in the city.

QT applied for a judicial review in 2014 after the Immigration Department rejected her application for a dependant visa, then appealed upon losing her case at the Court of First Instance. She won the appeal last September after the three judges, who later penned the judgment on benefits last Friday, found the director had “failed to justify the indirect discrimination on account of sexual orientation that QT suffers”.

But QT’s fate was put on hold after the director tabled three questions for the top court last December.

At issue was whether one can claim discrimination upon receiving different treatment based on marital status when neither same-sex marriages nor civil partnerships are legally recognised in the city. The director also sought clarification on whether immigration falls within the core rights and obligations associated with marriage, and whether he had justified his different treatment.

Lord David Pannick QC, for the director, argued on Monday that Hong Kong law recognises the important status of marriage – but only that between a man and a woman – and the director is entitled to adopt a policy which confers benefits to a spouse recognised by Hong Kong law.

He further argued that a difference in marital status alone justifies a difference in treatment. Pannick said the measure is also justified as it reflects the concept of marriage in Hong Kong and promotes the special status of marriage, which would be undermined by authorities conferring benefits to same-sex spouses.

The question for this court is whether that state of affairs amounts to unjustified discrimination
Dinah Rose QC

But Lord Walker of Gestingthorpe, one of the judges on the panel, noted the director’s definition of marriage – being heterosexual and monogamous – was taken nearly “word for word” from an English judgment dated 1866.

“It is a very old statement,” he said.

Ma further observed that that principle disappears in cases involving polygamous or gay couples in the city as diplomats, who do not experience the same difficulties as QT in getting a visa.

While conceding the treatment of polygamous couples is inconsistent, Pannick argued that consular staff spouses are treated differently for “a very good reason”, as concessions are considered advantageous to Hong Kong in promoting foreign relations.

Rose, however, said that showed “a valid marriage in Hong Kong is not a necessary condition”, nor a sufficient one.

“The justification provided by the director cannot survive any tests,” she continued. “The question for this court is whether that state of affairs amounts to unjustified discrimination.”