In our October 2017 newsletter, we discussed the judgment of the Court of Appeal (the “CA”) in QT v Director of Immigration CACV 117/2016, where the decision of the Court of First Instance (the “CFI”) was reversed and the CA held that the Director of Immigration’s refusal to grant dependant visa to an expatriate in a same-sex marriage amounted to indirect discrimination on sexual orientation. The Director of Immigration subsequently lodged an appeal with the Court of Final Appeal (the “CFA”), but it was unanimously dismissed.
The immigration policy and the Court of Appeal’s judgment
This case concerns a judicial review challenge commenced by QT.
The Government has a policy to allow people who enter Hong Kong on an employment visa to sponsor dependents including his or her spouse (“Policy”). In applying the Policy, the Director of Immigration maintains that “spouse” only refers to husband and wife in a heterosexual and monogamous marriage as it is the only valid marriage recognised under the law of Hong Kong.
SS and QT are British nationals who entered into a civil partnership in England in 2011. SS secured employment in Hong Kong and applied for an employment visa with the Immigration Department, including QT as her spouse under the Policy (the “Application”). QT brought proceedings against the Director of Immigration for refusing the Application to enter and stay in Hong Kong as a dependent of SS. It was the Director of Immigration’s case that the Application fell outside the scope of the immigration policy, as QT was not recognised as a “spouse” within its legal meaning as defined by Hong Kong’s matrimonial laws.
The judicial review was unsuccessful before the CFI. The CFI held that treating married persons and unmarried persons differently under the Policy would not constitute discrimination. On appeal, the CA was of the view that the eligibility requirement under the Policy failed the “proportionality test” because the Director of Immigration was unable to establish a rational connection between its aim of encouraging talented persons to live and work in Hong Kong and the stringent Policy of excluding homosexual persons for spousal visa applications. As such, the CA unanimously allowed QT’s appeal, holding that the Policy amounted to indirect discrimination.
The Issues before the Court of Final Appeal
The Director of Immigration further appealed to the CFA. The questions that the CFA was invited to determine were the following:
- Provided that Hong Kong does not legally recognise same-sex marriage or civil partnership on all levels (constitutional, statutory and common law), and accordingly the denial of the right to marry to same-sex couples does not constitute discrimination on account of sexual orientation, does this constitute to an absolute bar to discrimination claims when the differential treatment is based upon sexual orientation and marital status in all contexts?
- Given that the status of marriage carries with it certain core rights and obligations, which are not open to all other persons including unmarried same-sex couples who cannot get married under Hong Kong law, whether immigration (in particular, the eligibility of a person in a same-sex marriage or civil partnership recognised under a system of foreign law for a dependant visa based necessarily on a spousal relationship with the sponsor) falls within these core rights and obligations?
- If justification for a differential treatment in the context of immigration based on marital status is required,
- What is the appropriate standard of scrutiny to be applied; and
- Whether the Director of Immigration has justified the difference in treatment for eligibility for dependant visa based on marital status?
No rational connection between the immigration policy and attracting foreign talents
In respect of the first and second questions, the CFA considered that unrecognition of same-sex marriage or civil partnership in Hong Kong does not set an absolute bar against discrimination claims. Regardless of Hong Kong’s position to the meaning of valid marriage, it is incumbent on the Director of Immigration to treat all spouse dependent applications fairly in accordance with the principle of equality. Any differential treatment towards a particular group under immigration policies would certainly require a justification that satisfies the proportionality test.
The CFA also held that the CA’s suggestion that there are certain “core rights and obligations” unique to marriage based on which differential treatment cannot be regarded as discriminatory and therefore requires no justification should not be followed, because such approach is circular and would lead to problematic arguments on what constitutes core rights and obligations of marriage. Instead, the focus should be on whether there is justification for a differential treatment.
In response to the last question, the CFA clarified that the appropriate standard of review is dependent on the circumstances of each case, which in the present context would be the standard of reasonable necessity. Accordingly, the Policy may only intrude the protected rights of QT to an extent that is no more than reasonably necessary.
In view of the circumstances, the CFA agreed with the CA that there was no rational connection between the aims of attracting foreign talent and maintaining strict immigration control. The immigration policy wholly ran counter to the aim of encouraging talents to join the workforce in Hong Kong since whether a person has talent or skills would not depend on his/her sexual orientation. As such, the CFA unanimously dismissed the appeal.
The CFA ruling is a significant milestone for the LGBT community, confirming that persons in civil partnership legally recognised overseas are eligible for spousal dependent visas. It also illustrates that the constitutional rights to same-sex couples cannot be unjustifiably encroached without satisfying the stringent legal scrutiny. However, the appeal did not involve any claim in relation to whether same-sex couples have a right to marry under Hong Kong law, which no doubt remains a controversial issue in the city.
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