Striving towards greater equality

Despite the current lack of specific legislation covering discrimination on the ground of sexual orientation in Hong Kong, the Hong Kong courts have shown a shift towards greater recognition and protection of LGBT rights. In a recent landmark case of QT v. Director of Immigration CACV 117/2016, the Court of Appeal ("CA") concluded that the differential treatment based on sexual orientation in determining dependant visa application is unjustified.

QT entered into a civil partnership with her same-sex partner, SS, in England. When QT was later employed with an employment visa to work in Hong Kong, she applied to the Immigration Department for a dependant visa with SS as her spouse. The Director of Immigration rejected QT's application on the ground that she was not a "spouse" within the meaning of Hong Kong Immigration Policy, and thereby failed the Eligibility Requirement for a dependant visa. QT applied for a judicial review of the Director of Immigration's decision, arguing the decision not to grant her a dependant visa was discriminatory and unjustified, in breach of Article 25 of the Basic Law (providing that all Hong Kong residents will be equal before the law) and Article 22 of the Hong Kong Bill of Rights (prohibiting discrimination on any grounds). QT failed at the first instance and subsequently appealed to the CA.

The CA held that where same-sex couples were treated differently on the basis of their sexual orientation under the Eligibility Requirement for a dependant visa, it would amount to unlawful indirect discrimination unless it is objectively justified. The CA considered that dependant visas should be open to all with a view to attract the most talented and skilled people irrespective of the applicants' sexual orientation. Whether the spouse is heterosexual or gay cannot possibly be relevant in determining the "quality" of talent. Although there should be some control over immigration, the line to be drawn for purposes of administrative workability should not be discriminatory in nature.

The CA rejected the Director of Immigration’s argument that he was entitled to follow the legal definition of marriage in Hong Kong in setting the Eligibility Requirement. It held that a dependant visa is only a privilege conferred on the applicant to stay in Hong Kong, which would not go so far as recognising the validity of same-sex union or marriage under Hong Kong law.

This decision potentially opens the door for more applications for dependant visas by same-sex couple who are in a civil partnership or same-sex marriage. Along with the recent judicial review decision of Leung Chun Kwong v Secretary for the Civil Service & Anor [2017] 3 HKC which dealt with extending employment benefits to a same-sex spouse, the Hong Kong courts have shown its determination and commitment to promote greater equality. It is advisable for companies to review any existing equal opportunities policies to ensure they cover characteristics such as sexual orientation, gender identity and intersex status. 

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