Court of Appeal allows same sex dependant visas

10月052017

In a landmark decision handed down on 25 September 2017, the Court of Appeal held it unlawful to exclude couples in same sex marriages and civil partnerships from the dependant visa regime: QT v Director of Immigration, CACV 117 of 2016. The Court found that offering dependant visas only to “heterosexual” couples discriminated against same sex couples on the grounds of sexual orientation, and couldn’t be allowed to stand.

Subject to appeal, the decision will mean that the same sex spouses of permanent residents and residents in Hong Kong will be eligible to apply for dependant visas. Dependant visas will have to be offered to same sex couples on the same terms as they are to opposite-sex couples.

Background

The case came about after the Director of Immigration refused a dependant visa application made by QT. QT’s civil partner, SS, had been offered relocation from England to Hong Kong with her employer and had secured an employment visa in Hong Kong. SS and QT have been together since 2004 and civil partners since 2011.

The Director refused the application on the basis that QT and SS were not “spouses” within the meaning of his immigration policy. The Director maintained that the word “spouse” only referred to opposite sex couples, noting that Hong Kong marriage law carries that limited meaning, too.

The result of this policy for QT, and for many others in Hong Kong, was that they could only live with their same sex partners on visitor visas. This is a precarious immigration status, which does not accrue residence. It does not entitle one to a HKID card, and it excludes its holders from various public services. It also requires its holders to regularly exit Hong Kong (at intervals ranging between 14 and 180 days depending on the passport held by the visa holder).

Decision

All other things being equal, it appeared that if QT had been in an opposite sex marriage she would have secured a dependant visa, an HKID card, residence and entitlement to public services.

The Court found this unlawful. Three senior members of the bench gave concurring judgments. The basis of the Court’s decision was that the Director’s policy discriminated against same sex couples without good reason. In the language of the law: QT and SS were in an analogous situation to opposite sex couples and excluding them, but not excluding opposite sex couples from the regime, was not a proportionate means of securing a legitimate aim. It could not be justified.

The Director had offered two justifications for the exclusion. First he said that he had to balance the need to attract foreign talent with the need to maintain strict and effective immigration control. The Court rejected this argument. It was not rational to “attract talent” by excluding same sex couples. In the words of Poon JA at § 139:

Simply put, the Director’s avowed aim of striking the balance is applicable to all potential talented people that Hong Kong wishes to attract irrespective of their sexual orientation. Yet the Eligibility Requirement only permits heterosexual married people to bring their spouses with them. Thus analyzed, the [exclusion of same sex couples from the dependant visa scheme] is inconsistent with the Director’s avowed aim.

Notably, a consortium of leading international banks had previously sought to intervene in the case, arguing that the exclusion of same sex couples hampered their ability to attract and relocate their talent to Hong Kong. The banks’ application was refused, though their arguments appear to have informed the Court’s judgment.

The second justification the Director put forward was that it was easier for him to administer the dependant visa regime by only considering applications made by opposite sex couples. The Court, perhaps unsurprisingly, rejected this argument, too. Gay marriages and civil partnerships are officiated in the same way as marriages in an increasing number of countries, and it was not rational, either, to consider them more difficult to establish and prove than opposite sex marriages.

Who is eligible?

Parties were given 28 days to agree the exact terms of the relief to be ordered and at the moment, no written policy in relation to the judgment has been issued by the Immigration Department.

Subject to there being an appeal, or to any appeal by the Immigration Department being unsuccessful, the decision will mean that formalised same sex couples will be eligible to apply for dependant visas, where one partner is resident in Hong Kong, for example on an employment or training visa. It should also mean that permanent residents are able to bring their formalised same sex partners to Hong Kong. Those in gay marriages and civil partnerships celebrated abroad will certainly meet the criteria.

The decision unfortunately does not assist those partners in informal relationships regardless of whether the couple is same sex or opposite sex. The Court accepted the Director’s argument that he was entitled to “draw a bright line” when considering dependant applications. As matters stand the Director will be allowed to refuse to consider applications where the couple does not have valid gay marriage or equivalent celebrated under law. The position of couples that have entered the French PACs regime, or similar more contractual arrangements, is left notably unclear.

Eddie Look

Tanner De Witt has experience applying for and obtaining same-sex visas in various contexts. For advice on and assistance with obtaining a visa, or for advice on immigration matters generally, please contact:

Eddie Look
Partner | Email

Tim Drew
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.