Home > Blog > Rosemont: Hong Kong Court of Appeal ruling in favour of same-sex expats to secure Dependant Visa

Under dependant visas, direct family members are able to join their sponsors in Hong Kong. Hence, Hong Kong residents (i.e. valid employment or investment visa holders) can legally bring along their spouse and unmarried dependent children aged under 18 years old.

According to the criteria set out by the Hong Kong Immigration Department (‘’HKImmD’’) in assessing a dependant visa application, admission of a dependant may be favorably considered if:

  1. There is reasonable proof of a genuine relationship between the applicant and the sponsor;
  2. There is no known record to the detriment of the applicant; and
  3. The sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.

 

Until very recently, a ‘’spouse’’ was traditionally referred to as the lawfully married spouse or civil partner under a civil partnership lawfully entered into in a foreign country. However, a recent decision from the Court of Appeal tends to challenge this status quo and the traditional criteria used by the HKImmD in assessing dependant visa applications.

In 2011, a woman (namely ‘’QT’’) legally entered into a same sex civil partnership in the UK with another woman who was then offered a job in Hong Kong. Unfortunately, her dependant visa application was rejected by the HKImmD on the ground that such status was only granted to heterosexual couples. Following a judicial review and upon losing her case before the Court of First Instance, QT appealed such rejection.

In a landmark ruling on 25 September 2017, QT won the appeal against the HKImmD’s refusal to grant her a dependant visa.

Among the key arguments defended by the appeal court judges, it was argued that the HKImmD’s decision to confine the definition of ‘’spouse’’ to those in marriages recognized under Hong Kong matrimonial law failed to demonstrate the aim of striking a balance between attracting talents on the one hand, and immigration control on the other hand. It was also pointed that the HKImmD contradicted itself by recognizing overseas polygamous marriages in granting dependant visas, allowing the sponsor to bring with him any one of his spouses (provided that only one spouse resides in Hong Kong under a dependant visa).  For these reasons (among others), HKImmD’s refusal to grant dependant visa to a same sex partner amounted to indirect discrimination.

This ruling from the Court of Appeal is considered as a milestone in Hong Kong, and might open the door to future cases where same sex married partners could potentially join their loved ones in Hong Kong through dependant visas. 

However, this ruling from the Court of Appeal is not final since the HKImmD has lodged on 1 November 2017 an appeal to the Court of Final Appeal, which is the highest appellate court in Hong Kong and whose decision will be binding upon the parties (and upon lower courts).

Last but not least, it is worth noting that QT’s legal battle against the HKImmD was strongly backed by 12 major multinational financial institutions in Hong Kong, which applied to the Court of Appeal to file a submission spelling out their views on how the current HKImmD’s restrictive policy is affecting their recruitment of foreign talents. This submission was however rejected by the Court of Appeal. Notwithstanding the above, this shows that QT’s case is a key issue for business’ diversity and inclusion.

 

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