On 4 July 2018, the Hong Kong Court of Final Appeal gave judgment in a landmark discrimination case, finding that the Director of Immigration (the “Director”) acted unlawfully by excluding same-sex couples from his policy of granting dependant visas to the spouses of employment visa holders.
QT is a British national. She had entered into a civil partnership in the UK with her life partner, SS. When SS secured an employment visa for Hong Kong, QT applied to join her as a dependant under the usual policy. The policy provided that a dependant visa would normally be granted to the “spouse” of an employment visa holder. The Director refused QT’s application on the ground that a “spouse” under the policy meant a party to an opposite-sex marriage only, and that under Hong Kong law same-sex marriages or civil unions were not recognised.
QT challenged the decision by way of judicial review, contending that the policy was discriminatory on grounds of sexual orientation. The Court of First Instance dismissed her application, but her appeal was allowed by the Court of Appeal. The Director appealed. The Court of Final Appeal (Ma CJ, Ribeiro, Fok and Tang PJJ, and Lord Walker of Gestingthorpe NPJ) found for QT, dismissing the Director’s appeal.
Giving a joint judgment, the Court of Final Appeal rejected the contention that same-sex couples could not validly be compared to married, opposite-sex couples for the purposes of the dependant policy. The question was whether the difference in treatment was justified. The aim of the dependant policy as a whole was to attract talented workers to Hong Kong by allowing them to bring their dependant family members, while at the same time maintaining a strict and administratively workable system of immigration control. The Court found that denying talented gay workers the ability to bring their life partners with them did not advance these aims, and indeed was counterproductive to their attainment. It therefore held that the measure was not rationally connected to the aim pursued, and amounted to unlawful discrimination.
The full judgment is available here. Press reports on the case are available from:
Dinah Rose QC and Tim Parker acted for QT.
Lord Pannick QC acted for the Director of Immigration. Monica Carss-Frisk QC acted for the Director in the Court of Appeal.