Right to Dependant Visa Granted to LGBTQ Expatriate

Recently, the same-sex partner of an employee working in Hong Kong won an appeal in QT v. Director of Immigration against the Director of Immigration for refusing to grant her a dependant visa. This has been lauded as a landmark decision, as it showcases the trend of Hong Kong courts to offer greater protection to LGBTQ rights.

Background

QT and her same-sex partner entered into a civil partnership in the U.K. Her partner later came to Hong Kong on an employment visa, and in turn, QT applied for a dependant visa as her spouse.

The Director of Immigration rejected QT’s application on the grounds that QT did not meet the definition of “spouse” under applicable immigration policy. The Director of Immigration argued that a spouse is someone in a heterosexual marriage, as this is the only form of marriage recognized under Hong Kong law.

QT argued that this amounted to discrimination based on sexual orientation. QT lost in the lower court and appealed.

Decision

The appellate court ruled that basing the requirement of marriage on Hong Kong law puts homosexual couples at a disadvantage compared to heterosexual couples because they cannot marry, so they will never be able to meet the requirement. This differential treatment constitutes indirect discrimination due to sexual orientation.

The Director of Immigration needed to show that there was a legitimate aim underpinning the differential treatment and that the differential treatment was appropriate for achieving that aim.

The Director of Immigration argued that the aim is to strike a balance between attracting talent and maintaining effective immigration control. The court agreed that the aim was legitimate but ruled that such aim had no rational connection with the differential treatment. Attracting talent is applicable to all potential talent, irrespective of sexual orientation, yet the requirement is inconsistent in that it excludes homosexual spouses. The court also ruled that effective immigration control means controlling the quantity and quality of entrants and that sexual orientation has no bearing on either of these elements.

Accordingly, the Director of Immigration failed to show that the differential treatment was justified and the court allowed the appeal. 

Comment 

Though this case is lauded as a landmark decision, the extent of its effect remains to be seen, as the Director of Immigration has since taken the case to Hong Kong’s highest court, which may overturn the decision. However, as it currently stands, employers should be mindful that they may receive inquiries from employees seeking dependant visas for their same-sex spouses. This case suggests that courts will side with the spouse seeking a dependent visa in these situations.

Written by Cynthia Chung and Gladys Ching of Deacons and Roger James of Ogletree Deakins