News
News //
Hong Kong Employment Law Alert - October 2017
Submitted by // K Bowers, Partner / Solicitor Advocate; P Yeung, Senior Associate
31 October 2017

 

NO "DIFFERENTIAL TREATMENT" OF SAME-SEX COUPLES

Introduction

The recent landmark appeal case of QT v Director of Immigration [2016] 2 HKLRD 583 potentially opens the gate of entry into Hong Kong for same-sex partners applying for dependant visas. This appeal together with the recent case of Leung Chun Kwong v Secretary for Civil Service [2017] HKEC 854 where a gay civil servant's husband successfully argued that he should receive the same "spousal benefits" as his heterosexual colleagues' spouses are likely to have far-reaching implications for Hong Kong's LGBT community.

Background

In QT v Director of Immigration, a female British national ("QT") entered into a civil partnership with another female ("SS") in the U.K. QT applied for a dependant visa in Hong Kong with SS as her sponsor. Although SS was in Hong Kong under a valid employment visa and was apparently eligible to sponsor her spouse for residency in Hong Kong, the Director of Immigration rejected QT's application for a dependant visa. The application was rejected on the ground that QT was not a "spouse" within the meaning of Hong Kong's immigration policy ("Immigration Policy").

The Director of Immigration justified the decision by claiming that the Immigration Policy refers to a monogamous and heterosexual marriage as the only valid form of marriage recognised under Hong Kong law. QT subsequently applied for a judicial review to challenge both the Immigration Policy and the decision by the Director of Immigration on the basis that they were discriminatory. Whilst Hong Kong has not enacted legislation prohibiting discrimination on grounds of sexual orientation, QT was able to raise the judicial review by relying on the constitutional protections grounded in the Hong Kong Basic Law and the Hong Kong Bill of Rights Ordinance, as well as on the basis of administrative review.

At First Instance, the Court dismissed QT's application for judicial review and held that neither the Immigration Policy nor the decision by the Director of Immigration was discriminatory on the basis of sexual orientation. The decision was overturned by the Court of Appeal ("CA"), which unanimously held that the Immigration Policy constitutes indirect discrimination on the basis of sexual orientation, which the Director of Immigration had failed to justify.

The CA's landmark decision in favour of QT declares that for the purposes of Hong Kong's Immigration Policy on dependant visas, the Director of Immigration does not have to strictly follow the definition of marital status under Hong Kong law.

Can the differential treatment be justified?

The CA held that the Immigration Policy resulted in "differential treatment" of same-sex couples by reason of marital status. In deciding whether such differential treatment constituted indirect discrimination and whether it was lawful, the CA examined whether the differential treatment could be justified.

"Legitimate aim" and "rational connection"

In this respect, the CA found that the Immigration Policy pursues the legitimate aim of striking a balance between maintaining Hong Kong's continued ability to attract people of the right talent and skills for employment and the need for a system of effective, strict and stringent immigration control.

However, the CA then found that the Immigration Policy is not "rationally connected" to the legitimate aim for two reasons, being: (1) excluding a foreign worker's lawfully married civil partner is counter-productive to attracting the worker to come or remain in Hong Kong for work; and (2) excluding a foreign worker's same-sex civil partner or spouse does not advance or help maintain Hong Kong's immigration policy (which in the present context means controlling the quantity and quality of entrants into Hong Kong).

Ultimately, the CA held that the Director of Immigration had failed to prove that confining the definition of "spouse" to those in marriages recognised by Hong Kong law is "rationally connected" to the aim of striking the balance between attracting talent and immigration control. Consequently, the differential treatment in the Immigration Policy could not be lawfully justified.

Good news for Hong Kong employers

Several large institutions in Hong Kong have applauded the CA's ruling and stated that they believe this judgment will advance Hong Kong's ability to attract world class talent, which is crucial for maintaining its competitive edge as a leading international financial centre.

Despite this development in immigration law, employees and same-sex spouses applying for dependant visas should note that the Director of Immigration still retains the discretion to decide cases on grounds of "administrative workability and convenience". In the present context, the discretion means that eligibility for a dependant visa is not automatic and same-sex couples must still provide evidence of the existence of a spousal relationship (i.e. a civil partnership certificate) in order to apply for a dependant visa.

The decision cannot be construed as a reinterpretation of the term "spouse" in Hong Kong legislation. However, it is certainly a step forward for anyone from the LGBT community who is looking to bring their partner to Hong Kong. This is also a welcome development for Hong Kong, as it should widen the pool of talented people who want to come here to work.


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