A lesbian expatriate has won a landmark appeal against the Hong Kong Immigration Department’s refusal to grant her a spousal visa, potentially opening the gates for others who can’t join their partners because the city does not officially recognise same-sex unions.
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The Court of Appeal’s unanimous decision means the woman, identified only as QT, will be given a dependant visa through her same-sex partner who works in Hong Kong – an immigration status only granted to heterosexual couples.
“It’s a good day for Hong Kong,” her solicitor, Michael Vidler, said. “It’s a good day for QT and … all the lesbians and gay couples whose partners’ visas were denied.”
While the court ruled that it was a form of indirect discrimination for the Immigration Department to base its definition of “spouse” on a marriage between a man and a woman, it also made clear that granting a dependent visa to QT was not an official validation of same-sex unions.
The case has wide implications for overseas companies wanting to relocate their LGBT staff to Hong Kong. It earlier prompted 12 leading international financial institutions, including Goldman Sachs Services (Asia) and Morgan Stanley Asia, to offer backing for QT in court, but their offer was turned down.
“Excluding the foreign worker’s lawfully married [although same-sex] spouse or civil partner under a civil partnership lawfully entered into in a foreign country from coming to Hong Kong to join the worker is, quite obviously, counter-productive to attracting the worker to come to or remain in Hong Kong to work in the first place,” chief High Court judge Andrew Cheung Kui-nung wrote.
The institutions’ lawyer Martin Rogers, also said he was pleased, and could not see a good ground for the government to appeal.
In their 68-page ruling, the three appeal court judges said the department had failed to demonstrate the visa scheme had been put in place “rationally”, which amounted to indirect discrimination.
QT, a British citizen, entered a civil partnership in England just months before she moved to Hong Kong in 2011 with her partner SS, who had been offered a job in the city. She applied for a judicial review after the department rejected her application for a dependant visa, then appealed upon losing her case at the Court of First instance.
While the Immigration Department had argued that it was obliged to follow the city’s matrimonial law providing only for heterosexual unions, Mr Justice Thomas Au Hing-cheung, the presiding judge at the lower court, ruled that QT’s request was effectively asking the department for “backdoor” recognition of same-sex marriage.
But on Monday, the appeal judges disagreed, saying the dependant visa was no more than a “privilege”, and had nothing to do with the director of immigration having to follow marital status as defined by Hong Kong law.
If anything, they argued, the department would have already contradicted itself by recognising overseas polygamous marriages here, as long as the person involved brought only one spouse to the city through a dependant visa.
Appeal court vice-president Mr Justice Johnson Lam Man-hon said it could not be suggested that granting dependant visas to gay couples would endanger the institution of marriage.
Against the department’s argument that it might be more difficult to vet homosexual couples, the judges countered that those who had entered same-sex marriages or civil partnerships overseas should be able to produce the same proof of relationship – a certificate – as heterosexual couples do.
“So excluding them by reason of administrative workability and convenience is not rational,” Justice of Appeal Jeremy Poon Shiu-chor wrote.
“The director [of immigration] has therefore failed to justify the indirect discrimination on account of sexual orientation that QT suffers.”
The chief judge also acknowledged a change in societal attitude. “Times have changed and an increasing number of people are no longer prepared to accept the status quo without critical thought,” he wrote.
The judges asked both QT and the department to work out an arrangement in accordance with the ruling and submit a proposal within 28 days.
Raymond Chan Chi-chuen, the city’s only openly gay lawmaker, called the ruling an improvement for sexual minority rights, but he criticised the government for failing to set up a “civil union system” which would at least grant LGBT people the same rights as their heterosexual counterparts, even though same-sex marriage remained illegal in Hong Kong.
He said he had tabled a bill in the legislature to debate the issue.
The Equal Opportunities Commission welcomed the ruling, saying it was time for the government to consider comprehensively a legal framework and policy measures to recognise same-sex relationships and protect LGBT rights.
This article appeared in the South China Morning Post print edition as: lesbian wins case for spouse visa in landmark ruling