Latest Judicial Development
Learn more about latest judicial development and recognition of LGBT+ rights in the Hong Kong courts, as well as landmark overseas judgments.
Summarised by Thomas Lam (Associate)
The Applicant (“QT”) is a British national. She entered into a civil partnership in the UK with her same sex partner (“SS”). When SS was granted an employment visa for Hong Kong, QT applied to join her as a dependent under the Dependant Policy. The Dependant Policy states that certain groups of people who are not Hong Kong permanent residents are eligible to apply as dependants, including the sponsor’s spouse. The Director of Immigration (“Director”) refused QT’s application on the ground that “spouse” under the Dependent Policy only means a party in a heterosexual marriage recognised under Hong Kong laws. As a result, QT challenged the Director’s decision in a judicial review.
D ecisions from lower courts
In the Court of First Instance, QT was unsuccessful. The Court held that the difference in treatment (between heterosexual married couples and homosexual civil partners) was justified because QT was considered as “unmarried” in Hong Kong and thus, differed from a married person. The Director was given discretion to balance the needs of attracting foreign talents to Hong Kong and maintaining immigration control. QT appealed to the Court of Appeal.
The Court of Appeal overturned the lower court’s decision. It was held that, in the context of immigration, it is justified to compare QT and SS with other married heterosexual couples because this context fell outside the core rights and obligations unique to a heterosexual marriage. Civil partnerships are also proof that the partners are similar to a married heterosexual couple and does not therefore impose administrative unworkability onto the Director. The Director also failed to justify the less favourable treatment to same-sex couples, which amounted to indirect discrimination. The Director appealed to the Court of Final Appeal.
Court of Final Appeal
The Court of Final Appeal unanimously ruled in favour of QT.
The key questions before this Court are as followed:
The Court answered this question in the negative.
The Court recognised that the Director and his Department has very wide powers of immigration control under Article 154 of the Basic Law, which is enshrined in section 11 of the Immigration Ordinance (Cap. 115). However, when implementing and enforcing the Policy (implemented under the Immigration Ordinance), the Director must exercise his power in accordance with the principles of equality (Article 25 Basic Law), fairness, and rationality, reflecting the rule of law.
The Court rejected the Director’s argument that differential treatment between same-sex civil partners and heterosexual married couples required no justification. In fact, the Director’s contention that same-sex civil partners are subject to differential treatment by the mere fact that they are “not married” is a circular argument. There is also no obvious difference between a marriage and a civil partner to preclude the Director’s decision from scrutiny.
The Court dismissed this question.
The Court rejected the Court of Appeal’s approach that certain “core rights and obligations” unique to heterosexual marriages exist to justify differential treatment. This approach is again circular and gives rise to a fruitless debate as to what would or would not fall within “core rights and obligations”. The key question is whether the difference in treatment based on marital status could be justified as fair and rational, which brings us to the third question.
The Court answered this question in the negative.
The Director argued that differentiating between the two marital status served the legitimate aim of encouraging talents to work in Hong Kong and at the same time maintain immigration control, which is legally certain, administratively workable and convenient. This argument was rejected by CFA. These were legitimate aims, but the Policy was not rationally connected to those aims. The Policy was counter-productive by deterring non-straight talented people to work in Hong Kong. Further, the Policy is not necessary to be conducive to administrative workability and convenience as QT may easily produce their civil partnership certificate.
The Court also held that the appropriate standard of review in this case is reasonable necessity, which did not confer excessive limitation on either side to prove their case.
This is a ground-breaking case in Hong Kong’s LGBT history. Whilst it does not directly recognise validity of homosexual marriage, it paved the way for equal treatment and rights for same-sex civil partners. The reasoning of the Court of Final Appeal also spilled over to other areas of the administration, including benefits of civil servants, housing benefits, etc. It is interesting to note that the Court’s view on the ‘reasonable necessity’ of standard of review also illustrates the willingness of the Court to recognise the normality and legitimacy of the LGBT community, without imposing an onerous threshold on LGBT applicants.