QT v Director of Immigration  HKCFA 28 (4 July 2018)
A landmark decision of the Hong Kong Court of Final Appeal has found that the Director of Immigration acted unlawfully by administering an immigration policy in a manner that discriminated against same-sex couples. The policy had prevented dependant visas from being granted to the same-sex spouse of a person resident in Hong Kong on an employment visa.
QT, a British national, entered into a civil partnership in the United Kingdom with her life partner SS. QT subsequently obtained an employment visa in Hong Kong. SS sought a dependant visa.
The Director of Immigration applies a policy which relevantly permits a dependant visa to be issued to persons who are the sponsor’s spouse or the sponsor’s unmarried dependant child. Under that policy, the Director defined “the sponsor’s spouse” as a person of the opposite sex to the sponsor, in a monogamous marriage, adopting marital status as defined under Hong Kong’s matrimonial law – being the voluntary union for life of a man and a woman to the exclusion of all others.
The Director refused QT’s application for SS’ dependant visa on the basis that it was “outside of the existing policy”, stating that they were unable to show their marriage was celebrated in accordance with the law in force in a place and at a time where the law prescribed marriage in a manner consistent with the Hong Kong matrimonial law. QT commenced judicial review proceedings seeking to quash that decision, which were ultimately appealed to the Court of Final Appeal.
QT challenged the decision on three principal grounds:
first, that the decision was unreasonable in the Wednesbury sense, as it was discriminatory against her on sexual orientation grounds that were not justified;
secondly, that the Director had erred in law in construing “spouse” to mean a husband or wife, but not including a same-sex partner under a civil partnership; and
thirdly, that if the Director’s construction of “spouse” was correct, this infringed QT’s constitutional rights under the Hong Kong Bill of Rights and the Basic Law.
QT’s challenge was successful on the first ground, and the Court did not consider the second or third grounds.
The two key issues which fell for consideration were whether the application of the policy was discriminatory, and if so, whether it was justified.
The Court began its analysis by reiterating that statutory powers, such as those exercised by the Director in this case, are subject to implied limitations – including that that they must be exercised only for the purposes for which they are given, and in accordance with the principle of equality. A violation of the principle of the equality may result in a finding that a decision is irrational and unreasonable on Wednesbury grounds.
The Court first addressed whether there had been discriminatory treatment, observing the “notable convergence in the approaches of various courts” as to what constitutes discrimination. Three categories of discrimination were described:
like cases not being treated alike – where a complainant receives unfavourable treatment relative to treatment of persons in relevantly similar situations;
unlike cases being treated alike – where a complainant disadvantageously receives the same treatment as persons in significantly different situations; and
indirect discrimination where the impugned measure appears neutral on its face, but is significantly prejudicial to the complainant in its effect – for example, where an apparently neutral law lays down criteria which certain persons will never be able to meet, thereby imposing an “insurmountable disadvantage”.
The Court concluded that the case involved the third, indirect category of discrimination on the basis of QT’s sexual orientation, because the dependant visa eligibility criterion (that is, having to be a party to a marriage which satisfies the requirements of marriage under Hong Kong law) could not be met by same-sex couples. This rendered them ineligible for dependant visas on the basis of their sexual orientation. QT also submitted that she also suffered direct and indirect discrimination, which the Court appeared to accept in principle (although no formal finding was made).
The Director submitted that the policy (while discriminatory) did not require justification, arguing that the status of marriage is plainly special and different to the status conferred by a civil partnership, such that they are not in “like” positions. On this approach, the difference between QT and a married spouse would be in itself a justification for differential treatment.
The Court rejected this approach, principally on the circularity of its reasoning. It cited a UK Privy Council case that observed that such reasoning “can be dangerous. If the ground for the difference in treatment were a difference in sex, it would not be permissible to say that a man and a woman are not in an analogous situation because men and women are different”. The Court further observed that there was little basis in fact for asserting an obvious difference between a marriage and a civil partnership. In doing so, the Court plainly stated that the two institutions were closely equivalent, with same-sex couples plainly having relationships that are as loving as, or more loving than that of many straight couples.
The Court then assessed whether that discriminatory treatment could be justified – that is, whether the infringement of the principle of equality was rationally connected to the achievement of a legitimate aim, and was not more than reasonably necessary to accomplish that aim. It was agreed that the policy had two principal and legitimate aims: (i) attracting and retaining a talented workforce, accompanied by their dependants; and (ii) maintaining strict immigration control. The Court flatly rejected the Director’s arguments, finding that the exclusion of same-sex couples from eligibility could not be rationally connected with either objective.
The Director also argued that the policy had a subsidiary aim – being able to draw a “bright line” between individuals who did and did not qualify for dependant visas, thereby promoting legal certainty, administrative workability and convenience. The Court concluded that the policy was not consistent with that objective. In short, it was just as administratively convenient for SS and QT to provide a copy of their civil partnership certificate as for a straight couple to provide a marriage certificate. The Director’s approach also failed to account for other criteria that needed to be satisfied under the policy.
While the decision has no impact on the definition of marriage under Hong Kong’s matrimonial law (which may only be changed through further litigation or legislative amendment), it is nonetheless a significant step forward for the rights of same-sex couples in Hong Kong.
Importantly the Court made a number of statements which may signal its approach in future cases relating to same-sex discrimination. It concluded its judgment by strongly highlighting that measures discriminating on sexual orientation must be justified by “particularly convincing and weighty reasons”.
The case was of particular interest to the business community, with a number of banks and law firms seeking to intervene and argue that the policy impeded their ability to attract talented employees to Hong Kong. While these applications were denied the decision reflects the extent of social and business momentum around LGBTIQ* rights in Hong Kong and support for further change.
The full text of the decision can be found here.
Rebecca Williams is a Solicitor at King & Wood Mallesons.