Court of Final Appeal decision marks a watershed moment for equality for same-sex couples in Hong Kong

QT and the Director of Immigration FACV1/2018 [04.07.2018]

Date published

10/07/2018

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The Court of Final Appeal (the “CFA”) handed down its decision on Wednesday 4 July 2018 in QT and the Director of Immigration FACV1/2018 (on appeal from CACV 117/2016), ending proceedings which lasted over three years and forcing the Director of Immigration (the “Director”) to change its policy in respect of the granting of dependant visas in Hong Kong (the “Policy”).

The Policy provides that a spouse will only be eligible for a dependant visa if they are in a female – male marriage, thereby precluding a dependant spouse in a same-sex couple from obtaining a visa. The Policy was deeply unpopular with employers not only because it was considered inherently discriminatory, but because of the limits it placed on attracting talent to the city.  In fact shortly before the hearing of the appeal was heard, a group of 15 financial institutions, 16 law firms as well as Amnesty International Limited applied for leave to intervene in the appeal in order to file written submissions in support of the Court of Appeal’s Judgment (those applications to intervene were refused).

Background

SS was granted an employment visa to work in Hong Kong and was in a civil union under the UK’s Civil Partnership Act 2004 with QT. QT applied for and was a refused a dependant visa on the basis of the Policy.  QT commenced judicial review proceedings in 2014 which were unsuccessful in the Court of Instance before the Court of Appeal allowed her appeal.

The Director appealed to the Court of Final Appeal.

The Court of Final Appeal’s analysis

The CFA emphasised that the Director must exercise his powers in accordance with the principle of equality.

In the context of an application for a visa, the CFA found that no obvious difference exists between a partner to a civil partnership and married spouse.  It followed therefore that there was differential treatment which was discriminatory on the basis of sexual orientation.

The Director accepted that if the CFA found that if there was differential treatment it would involve indirect discrimination (because same-sex couples would not be able to enter into a marriage recognised by Hong Kong law in order to obtain a visa while heterosexual couples could), but argued such differential treatment was justified in order to:-

a) encourage persons with needed skills and talent to join Hong Kong’s workforce, accompanied by their dependants; and

b) to maintain a system of effective and stringent immigration control (the “Stated Aims”).

The CFA agreed with the Court of Appeal’s findings that there was no rational connection between the Policy and the Stated Aims.  The Court failed to see how the Policy’s ‘exclusion of persons who are bona fide same-sex dependants of sponsors granted employment visas promotes the legitimate aim of strict immigration control’.

Calls for change

The Equal Opportunities Commission responded to the judgment by calling on the government to consider policy on same-sex relationship recognition and the protection of equal rights of LGBTI persons.

Article 25 of the Basic Law provides that “All Hong Kong residents shall be equal before the law” and Article 22 of the Bill of Rights prohibits the Government and all public authorities (or persons acting on their behalf) to engage in discrimination on the grounds of several protected characteristics, including ‘other status’ (which includes sexual orientation).

However, currently Hong Kong’s specific anti-discrimination laws seek to protect people from discrimination and harassment only on the grounds of race, sex, disability and family status.   There is no legislation addressing discrimination on the grounds of sexual orientation.

Hopefully, the decision may act as a catalyst for the introduction of a new ordinance similar to the other anti-discrimination ordinances, making it unlawful for employers to discriminate against persons on the basis of sexual orientation.

What should employers do?

Employers should:

  • be aware of this development and consider any policies which may be affected in the future by such a change to the law; and
  • consider the possibility that the word ‘spouse’ in their policies and contracts of employment may be interpreted to include a spouse in a same-sex civil union where their employees have entered into such a union.