The Government’s Refusal to Grant Dependant Visa to an Expatriate in a Same-Sex Marriage Amounted to Indirect Discrimination on Sexual Orientation
QT v Director of Immigration
In a much-anticipated decision, the Court of Appeal (“CA”)
allowed the appeal of QT, finding that the Hong Kong government’s policy of
refusing to recognize foreign registered same-sex civil partnerships in
granting dependent visas is discriminatory. While this case does not deal with
the recognition of same-sex marriage in Hong Kong, which is no doubt a
controversial subject, the case followed Leung Chun Kwong v
Secretary for the Civil Service and Another HCAL 258/2015 as yet
another small victory for lesbian gay bi-sexual transgender (“LGBT”) activists
and supporters.
This decision has a significant impact in the private
sector that regularly recruit expatriates such as banking and finance. In June,
twelve leading multinational financial institutions lent joint support to QT by
applying to the CA to submit their views on the impact of the government policy
on their recruitment as interveners. Although their application was rejected on
the basis that the interveners would likely recite the same arguments as QT,
the application in itself shows an increase in awareness of LGBT rights in Hong
Kong.
Background
The government has a policy to allow people who enter
Hong Kong on an employment visa to sponsor dependents including his or her
spouse (“Policy”). In applying the Policy, the Director of Immigration
maintains that “spouse” only refers to husband and wife in a heterosexual and
monogamous marriage as it is the only valid marriage recognized under the law
of Hong Kong.
QT and SS are British nationals who entered into a civil
partnership in England in 2011. Shortly after, SS secured employment in Hong
Kong and applied for an employment visa with the Immigration Department,
including QT as her accompany dependent under the Policy. QT’s application for a
dependent visa was refused because the Director of Immigration did not
recognize her as a “spouse”.
At First Instance
In October 2014, QT filed a judicial review to challenge
the decision on the grounds that: (1) The decision is discriminatory and unjustified,
and accordingly is Wednesbury unreasonable; (2) The Director has misapplied the
Policy by construing “spouse”; and (3) The decision is unconstitutional as it
breached Articles 25, 39 and 41 of the Basic Law and Articles 1, 14, and 22 of
the Hong Kong Bill of Rights.
The case was dismissed by Au J in First Instance in March
2016 on the following grounds:
- Differential
treatment is justified where there is enough of a relevant difference
between X and Y, and parties of a same-sex civil partnership are in a
sufficiently relevant different position as a heterosexual marriage
couple, and hence the Policy is justified;
- The
Director of Immigration is entitled to adopt a strict immigration policy
but the court would nevertheless severely scrutinize the Director’s
decision if it offends core values;
- Marriage
confers upon married couples a special legal status with new legal rights
and obligations which could well be different from civil partnerships;
- Under
common law, “spouse” means husband and wife of a heterosexual marriage and
excludes same-sex couples;
- Under the
law of Hong Kong, marriage is monogamous and heterosexual.
Court of Appeal’s Analysis
QT’s primary grounds of appeal is that the Judge erred in
finding that people in civil partnerships with a same-sex partner are in a
relevant different position to people in marriages with an opposite-sex
partner. In the appeal, the CA noted that discrimination is against the
cardinal rule of equality, and the principle of equality underpins the exercise
of power by any public authority. As such, the principle of equality must be
applied with full force even though the Director of Immigration has wide
statutory powers to immigration control. Citing previous LGBT rights cases such
as W v Registrar of Marriages [2013] 16 CFAR 112 the CA
observed that Hong Kong’s constitutional framework has not yet entrenched the
right to marriage for same-sex couples. Yet, the CA noted that if marital
status is used to establish certain legal rights and obligations, it could be
discriminatory if it is used in the wrong context.
There are three established forms of discrimination: (1)
those who are under the same circumstances are treated differently, (2) those
whose circumstances are different are treated the same, and (3) general policy
couched in neutral terms and not aimed at a particular group produces a
disproportionately prejudicial effect. The CA then adopted a “principle-based”
approach from R (Carson) v Secretary of State for Works and Pensions [2006]
1 AC 173 to determine whether discrimination took place noting that: “the
essential question for the court is whether the alleged discrimination, that
is, the difference in treatment of which complaint is made, can withstand
scrutiny… [W]here the position is not so clear, a different approach is called
for. Then the court’s scrutiny may best be directed at considering whether the
differentiation has a legitimate aim and whether the means chosen to achieve
the aim is appropriate and not disproportionate in its adverse impact.”
The CA then applied the four-step test adopted in Hysan
Development Co Ltd v Town Planning Board [2016] 19 HKCFAR 372 on
whether the Policy’s differential treatment is proportional: (1) The difference
in treatment must pursue a legitimate aim, (2) The difference in treatment must
be rationally connected to the legitimate aim (3) The difference in treatment
must be no more than is necessary to accomplish the legitimate aim, and (4)
Whether a reasonable balance has been struck between the societal benefits of
the encroachment and the inroads made into the constitutionally protected
rights of the individual.
The CA observed that the standard of scrutiny to be
applied is dependent on the context of the case. The strictest test of “no more
than necessary” was taken by the CA, citing that sexual orientation is now well
established in case law as part of a person’s characteristics like colour, race
and sex.
Legitimate Aim
The Director of Immigration argued that the Policy of
treating dependent spouses of same-sex couples differently pursues a legitimate
aim of striking a balance between (1) attracting people abroad with the right
talent and skills to come work in Hong Kong, and (2) the need for a system of
effective, strict and stringent immigration control in Hong Kong.
The CA held that the Director of Immigration failed to
prove the Policy served a legitimate aim, observing that if Hong Kong is
committed to attract talented and skilled people to come to work and live here,
the best way to achieve this is to open up the applications for dependant visas
to all, irrespective of their sexual orientation. While the government has an obvious
need to exercise immigration control, the Director failed to strike a proper
balance between two competing factors.
Rationality
The Director of Immigration argued that drawing the
“bright line” of the Policy at marriage for two reasons: (1) The government is
obliged to follow and give effect to the legal definition of marriage in Hong
Kong, and (2) administrative workability and convenience. However, the CA
disagreed that the Director has any obligation to uphold the definition of
marriage in Hong Kong law. The argument of protecting the institution of
marriage is undermined by the fact that the government had previously granted
dependent visas to one of the spouses of a polygamous sponsor. Having failed to
show the Policy’s legitimate aim and rationality, the CA did not deal with the
necessity and reasonable balance arguments.
Concluding Remarks
While the case did not review the institution of marriage
in Hong Kong, it confirms that differentiation by sexual orientation for some
“core rights” such as obtaining dependent visas can give rise to a
constitutional challenge based on the right of equality. Although Hong Kong
still does not recognise same-sex marriage, recent cases involving LGBT rights
show willingness of the Hong Kong Courts to protect LGBT rights in the right
context.
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