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Hong Kong: Court of Final Appeal Grants Same-Sex Partner Right to Dependent Visa

(July 30, 2018) On July 4, 2018, Hong Kong’s highest court, the Hong Kong Court of Final Appeal, issued a judgment that paves the way for the granting of dependent visas to same-sex partners. (Hong Kong Court of Final Appeal, Press Summary: QT v. Director of Immigration, Hong Kong Judiciary Legal Reference website (last visited July 25, 2018).)

The plaintiff, QT, is a British national, who entered into a same-sex civil partnership with her partner in England under the UK’s Civil Partnership Act 2004. Her partner was offered employment in Hong Kong and granted an employment visa. QT’s application for a dependent visa, however, was refused by the Director of Immigration on the ground that the existing policy was to admit a spouse as a dependent only if he or she was party to a monogamous marriage consisting of one male and one female. (Id.)

QT challenged the decision and her application for judicial review was dismissed in the Court of First Instance. The Court of Appeal, however, unanimously allowed QT’s appeal, and gave permission for the Director of Immigration to appeal to the high court. (Id.)

The Court of Final Appeal rejected the Director’s assertion that an obvious difference exists between marriage and a civil partnership for the purpose of dependent visa policy. According to the Court, marriage and civil partnership are each a status recognized under UK law. The Court stated, “Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage.” It also noted that same-sex marriage is not recognized under the Hong Kong law, and the appeal does not involve any claim that same-sex couples have a right to marry under Hong Kong law. (Id.)

The Court concluded there was no rational connection between the existing policy and the stated twin aims of attracting foreign talent and maintaining strict immigration control. According to the Court, the existing policy ran counter to the aim of encouraging talent to join the Hong Kong workforce “since a person who had the talent or skills deemed needed or desirable could be straight or gay.” Furthermore, the policy excluded persons who were bona fide dependent civil partners of employment visa holders on the grounds of sexual orientation. The Court found the exclusion did not promote the legitimate aim of strict immigration control. (Id.)

In conclusion, the Court of Final Appeal found in favor of QT and unanimously dismissed the Director of Immigration’s appeal. The full text of the judgment is available on the Hong Kong Judiciary’s Legal Reference System website. (QT v. Director of Immigration, [2018] HKCFA 28.)