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Hong Kong courts

‘Giant step forward for equality’ in Hong Kong as same-sex couples win right to spousal visas in Court of Final Appeal

Landmark decision ends immigration policy that restricted such visas to those who are married and heterosexual

PUBLISHED : Wednesday, 04 July, 2018, 10:08am
UPDATED : Thursday, 05 July, 2018, 1:47pm

Hong Kong’s top court handed down a landmark ruling in favour of a lesbian expatriate on Wednesday, requiring immigration authorities to grant same-sex partners spousal visas previously available only to heterosexual couples.

In its unanimous decision that recruiters say will give the city an edge in hiring foreign talent, the Court of Final Appeal sided with the British citizen, known in court as QT, putting an end to a three-year legal battle against the immigration policy.

The finding against the Immigration Department means the marriage status and civil union partnerships of same-sex couples will be recognised in Hong Kong for the specific purpose of a dependant visa. However, the city’s definition of marriage, between a man and a woman, remains unchanged.

“I was overjoyed,” QT, who is overseas, told reporters during a conference call.

She called the court decision “a small step for us, but one giant step for equality in Hong Kong”, and urged the government to protect the rights of the LGBT community.

The Court of Final Appeal’s ruling was a “loud and clear” affirmation of the community’s rights, she said, and acknowledges that “discrimination based on sexual orientation, like any other form of discrimination, is offensive and demeaning”.

“It is my hope that this case will pave the way for greater recognition of same-sex unions in Hong Kong,” she added, expressing hope that one day members of the LGBT community would be able to get married in Hong Kong.

She also thanked her partner for her support.

Support for same-sex marriage in Hong Kong grows

While the case did not involve challenging the definition of marriage in Hong Kong, her lawyer Michael Vidler said: “Every step of the case is an advancement. I think it vindicates the idea that the time is now for a change.”

A jubilant moment for the local gay community, the ruling was also welcomed by a host of Hong Kong-based global financial institutions that have experienced difficulties relocating talent to the city because of the immigration restrictions.

In a 45-page judgment, five justices ruled that the director of immigration, the respondent in the case, had failed to demonstrate how not granting dependent visas to married same-sex couples, or those solemnised under civil union, helped fulfil its aims.

Apart from maintaining “stringent” immigration control, the department’s other aim is to attract overseas talent, something the court said would be boosted by allowing gay and lesbian employees to bring their spouses with them.

“Such a policy [of not granting a visa] is counterproductive and plainly not rationally connected to advancing the ‘talent’ aim,” when gay couples were not given access to the spousal welfare, said the panel of judges – Chief Justice Geoffrey Ma Tao-li, Mr Justice Roberto Ribeiro, Mr Justice Joseph Fok, Mr Justice Robert Tang Kwok-ching and Lord Robert Walker of Gestingthorpe.

The judges also said the immigration director’s argument that civil union partnership differed from marriage was circulatory and based on a “shaky foundation”.

The government must now follow up and end the discrimination same-sex couples face in all walks of life
Jan Wetzel, Amnesty International

“It is hardly satisfactory to answer the question: ‘Why am I treated less favourably than a married person?’ by saying ‘Because that person is married and you are not’,” the judges wrote in their decision.

Secretary for Security John Lee Ka-chiu said the government respected the court’s decision and would study the judgment in detail.

Lodged in 2015, the case centred on the department’s refusal to grant QT a dependant visa, which is normally available for heterosexual married couples.

QT entered a civil partnership in Britain with her spouse – known as SS – months before SS secured a job and they moved to Hong Kong in 2011. After being denied a dependant visa, QT filed a judicial review against the director of immigration.

The legal fight took some dramatic turns. In 2016, QT lost at the Court of First Instance, which ruled the case was an attempt to get same-sex marriage recognised through the “back door”.

A year later, the Court of Appeal overturned the lower court’s decision, saying that by granting the dependant visa, it would not endanger the institution of marriage. The Immigration Department then filed the final appeal.

In a joint statement, the city’s 31 banks – which had tried to join the legal battle – called the decision “a positive outcome”.

Why gay civil servant Angus Leung took on the Hong Kong government

“By upholding the rights of all people in Hong Kong, regardless of sexual orientation, to obtain dependent visas for their spouses to live and work in this city, this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as Asia’s pre-eminent global centre for commerce,” Davis Polk & Wardwell, for the groups, said.

Jan Wetzel, senior legal adviser at Amnesty International, described the judgment as a “milestone for Hong Kong and a watershed moment for the rights of LGBTI people across Asia”.

“The government must now follow up and end the discrimination same-sex couples face in all walks of life,” he said.

The Equal Opportunities Commission, the city’s equality watchdog, urged officials to start consultations for legislation that would prevent discrimination based on sexual orientation, gender identity and intersex status “as soon as possible”, a spokesman said.

“In light of the court’s decision, we believe that the government should comprehensively consider the legal framework and policy measures on same-sex relationship recognition and the protection of equal rights of LGBTI persons,” the spokesman said. “These are important for upholding Hong Kong’s competitiveness both as an international city and a global business hub, and attracting talent.”