Hong Kongs Court Of Final Appeal Upholds LGBT Immigration Rights

Author:Mr Charles Allen and Karen Lam
Profession:Orrick
 
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Hong Kong's top court has confirmed that the status of same-sex couples who have entered civil partnerships overseas is to be recognised when considering the grant of dependent visas.

In QT v. Director of Immigration (FACV 1/2018), decided on 4 July 2018, the Court of Final Appeal (CFA) decided that QT, the partner of a primary employment visa holder with whom she had entered a civil partnership in England some years before moving to Hong Kong in 2011, was entitled to live and work in Hong Kong as a dependent.

The main issues before the Court were whether there was differential treatment of QT, as compared to a married heterosexual spouse, which was discriminatory, and if so whether that treatment could be justified.

The CFA rejected the Director's argument that any differential treatment between QT and a married spouse would require no justification because there is an obvious difference between a partner to a civil partnership and a married spouse.

Among other reasons, the court noted that marriage and civil partnership are each a status recognised under English law, and whilst civil partnership is not called marriage it is in almost every other respect from the status of marriage. In a touching passage, the court noted that the Director had acknowledged that "... same-sex couples in an enduring relationship are well capable of having a relationship that is as loving as, or more loving than, that of many heterosexual couples".

The CFA also dismissed the alternative argument that if justification was required, because the relevant policy involved indirect discrimination on the basis of sexual orientation, the court should not interfere unless it found that the relevant policy was manifestly without reasonable foundation.

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