QT v. Director of Immigration [2017] HKEC 2051

In brief

In a landmark decision, a lesbian expatriate has won an appeal against the Hong Kong Immigration Department's refusal to grant her a dependant visa. The Court of Appeal unanimously held that the refusal amounted to indirect discrimination based on sexual orientation, in breach of Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights.

Background and decision

QT, the appellant, and her partner, SS, met in 2004 and in 2011 entered into a civil partnership in England which provides same-sex couples with the same legal rights as a marriage. In mid-2011, SS was offered employment by a company in Hong Kong. She applied for an employment visa with the Immigration Department including QT as her accompanying dependant. QT's dependant visa application was rejected by the Director of Immigration (Director) on the grounds that QT was not a "spouse" within the meaning of Hong Kong's Immigration Policy (Policy), and therefore did not meet the Eligibility Requirement.

QT's application for judicial review of the Director's decision at the Court of First Instance was rejected. QT then appealed to the Court of Appeal (Court), arguing that the decision not to grant her a dependant visa was discriminatory and unjustified, in breach of Article 25 of the Basic Law (which provides that all Hong Kong residents will be equal before the law) and Article 22 of the Hong Kong Bill of Rights (which prohibits discrimination on any grounds). Treating same-sex couples who were legally married or in a civil partnership differently to heterosexual married couples put them at a serious and disproportionate disadvantage which was indirectly discriminatory.

The Court agreed that the Eligibility Requirement meant that same-sex couples were treated differently on the basis of their sexual orientation and this differential treatment must be objectively justified otherwise it would amount to unlawful indirect discrimination.

The Court rejected the arguments put forward by the Director that the differential treatment was justified.

The Director argued that the difference in treatment pursued the legitimate aim of striking a balance between (1) maintaining Hong Kong's continued ability to attract people with the right talent and skills to come to Hong Kong (by allowing their closest dependants to live with them) and (2) the need for a system of effective, strict and stringent immigration control in light of Hong Kong's small size and growing population.

The Court considered that to attract the most talented and skilled people, dependant visas should be open to all, irrespective of their sexual orientation. In terms of "quality" of talent, whether the spouse is heterosexual or gay cannot possibly be relevant. However there is a need to strike a balance between the second competing factor – the need to exercise some control 2 Baker McKenzie  September 2017 over immigration. Although the Director is entitled to draw a "bright line" and lay down a rule that is clear and administratively workable, this bright line should not be discriminatory in nature. For homosexual couples who have entered into a civil partnership or same-sex marriage outside of Hong Kong, the existence and proof of their relationship applies the same way as a heterosexual marriage and so excluding them by reason of administrative workability is irrational.

The Court also held that the institution of marriage was not endangered simply because a dependant visa could be granted to a same-sex couple in a legally recognised civil partnership overseas. It also rejected the Director's argument that the Director was bound to follow the definition of "spouse" set out in Hong Kong legislation.

Takeaway points

  • Change in Hong Kong Immigration Policy and increased visa applications: this decision potentially leads to a change in the traditional Immigration Policy for dependant visas and opens the door for more same-sex couples who are in a civil partnership or same-sex marriage to apply for dependant visas.
  • Increased recognition of LGBT rights: this case, along with the recent same-sex benefits decision Leung Chun Kwong v. Secretary for the Civil Service and another 28/04/2017 HCAL 258/2015 shows a shift towards greater recognition and protection of LGBT rights.
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