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On 25 September 2017, the Hong Kong Court of Appeal ruled in a landmark discrimination case that the Director of Immigration (the “Director”) acted unlawfully by excluding a same-sex couple from his policy of granting dependant visas to the spouses of employment visa holders.

On 25 September 2017, the Hong Kong Court of Appeal ruled in a landmark discrimination case that the Director of Immigration (the “Director”) acted unlawfully by excluding a same-sex couple from his policy of granting dependant visas to the spouses of employment visa holders.

QT was a British national who had entered into a civil partnership in the UK with SS. When SS secured an employment visa for Hong Kong, QT applied to join her as a dependant. The Director of Immigration refused QT’s application on the ground that she was not a “spouse” under the policy, which meant a party to an opposite-sex marriage only, and that under Hong 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. The Court of Appeal (Cheung CJHC, Lam V-P and Poon JA), in allowing QT’s appeal, considered that, although there remained some areas of social policy that were inherently linked to the core rights and duties of traditional, opposite-sex marriage, immigration control fell outside that area. Accordingly, the difference in treatment, which involved indirect discrimination on the ground of sexual orientation, required justification. The Court concluded that the policy was not justified by reference to the aims of the Director’s immigration policy.

The full judgment is available here.

Dinah Rose QC and Tim Parker (Tim is a called to the Hong Kong Bar and is a current pupil at Blackstone Chambers) appeared for QT.

 Monica Carss-Frisk QC appeared for the Director of Immigration.

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