Government announces policy switch after review prompted by case of married British lesbian denied spousal status
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Hong Kong will for the first time recognise overseas same-sex partnerships when granting dependant visas, the government announced on Tuesday.
The new policy was welcomed by advocates, but opponents of LGBT rights called on the government to make sure the amendment did not lead to more rights for homosexual couples, even as officials insisted it would not.
The change came after a review prompted by a Court of Final Appeal ruling in July, at the end of a long legal battle, that a married British lesbian – identified as QT – should be granted a spousal visa. She had initially been denied.
From Wednesday, the director of immigration will favourably consider an application from a person who has entered into “a same-sex civil partnership, same-sex civil union, same-sex marriage, or opposite-sex civil partnership or opposite-sex civil union outside Hong Kong” for entry for residence as a dependant, if the person meets the normal immigration requirements.
There should be “reasonable proof of a genuine relationship between the applicant and the sponsor”, “no known record to the detriment of the applicant”, and evidence that “the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong”, according to a government statement.
Officials stressed the revision concerned the immigration policy on applications for entry of non-local dependants only.
“It does not affect any other policies of the government or other rights under the existing law in Hong Kong,” a government statement said.
And a spokesman said: “As the [Court of Final Appeal] recognised in its judgment in the QT case, a valid marriage under Hong Kong law is heterosexual and monogamous and is not a status open to couples of the same sex.”
Pan-democrat Raymond Chan Chi-chuen, an openly gay member of the Legislative Council, welcomed the policy change and described it as a “victory for love”. But he called for more change from the administration.
“The government should not drag its feet in reviewing other social policies,” he said. “For example, the right of same-sex partners to apply for public housing. Must the government wait until after it loses another case in the courts?”
Chan is expected to bring a motion for debate at Legco next month on the rights of same-sex partners.
Solicitor Michael Vidler, who represented QT, described the policy change as “long overdue”.
“It is unfortunate, however,” he added, “that the government appears intent on continuing to resist the introduction of same-sex union and marriage in Hong Kong – despite the fact that we are increasingly looking like the odd man out in the community of nations that all have same-sex union and marriage.”
Holden Chow Ho-ding, a legislator for the pro-government Democratic Alliance for the Betterment and Progress of Hong Kong, who opposes gay marriage, said the government should assure the public that the change did not mean Hong Kong would recognise same-sex marriage.
“I appreciate that some people might take their cases to court. It is their right, and we will let the court to deal with it. But the government should be very careful that it should not seek to amend other policies [because of the QT case],” he said.
And Choi Chi-sum, of Society For Truth And Light, which opposes gay rights, urged the government to review the law to plug any possible loopholes before they are challenged in court. “I think the court should be more careful in handling such cases,” he said. “The court is not there to determine moral values on behalf of the public.”
In a question and answer session in July, Chief Executive Carrie Lam Cheng Yuet-ngor told legislators the government had no plan to amend other social policies, despite the QT ruling, saying same-sex marriage was a controversial topic.
At the centre of the legal wrangle was a challenge brought by QT and her partner, known as SS, who moved to Hong Kong in 2011 after SS got a job in the city. The couple entered into a civil partnership in Britain, which gave them the same rights and responsibilities as a married couple under British law.
But the Hong Kong Immigration Department rejected QT’s application for a dependant visa, because it did not recognise same-sex relationships. The pair took the case to court, arguing that the decision was discriminatory and breached the Basic Law and the Bill of Rights Ordinance.
The Court of First Instance ruled against QT in March 2016. QT appealed.
The Court of Appeal reversed the decision last year. The Immigration Department filed an appeal, and the Court of Final Appeal made a ruling in July in favour of QT.
The Immigration Department said it brought in an interim arrangement in April 2018 to process applications for entry of non-local dependants, in the wake of the Court of Appeal ruling.
By the end of August, the department had received 56 dependant visa applications from people in same-sex unions, of which 20 were successful. There were 33 still being processed. In the other three cases, the applications could not proceed because the applicant did not produce necessary information, or they withdrew.
The department said it would process the outstanding applications, and any new ones, according to the revised policy.
One Canadian applicant for a same-sex spousal visa welcomed the move.
“It’s a positive start and it is encouraging,” he said.
The man – who preferred to remain anonymous – moved to Hong Kong, where his husband had secured a job, three years ago. He pre-empted the announcement and applied for his visa five weeks ago.
“The first thing I’ll do is I will get a Hong Kong ID and feel like a real resident finally,” he said, adding that he would also be able to get a job.
He said he used to be haunted by thoughts of not being able to enter Hong Kong when returning from abroad, which would leave no one to care for their daughter. But he said he felt more secure upon Tuesday’s news.