In a landmark ruling, the Court of Appeal held on 25 September 2017 that the Immigration Department’s visa policy, insofar as it denies same-sex couples eligibility for consideration for a dependant visa, breaches the right to equality enshrined in article 25 of the Basic Law.
This case involved an application to the Immigration Department for a dependent’s visa for an individual in a same-sex civil partnership recognised under the Civil Partnership Act 2004 in England. The application was rejected on the basis that the Immigration Department did not view the applicant as a “spouse” for the purposes of its dependent visa policy.
In the Immigration Department’s view, “spouse” was limited to a husband or wife in a heterosexual and monogamous marriage as defined under section 40 of Hong Kong’s Marriage Ordinance. This interpretation thereby excluded couples whose same-sex marriage or civil partnership has been legalized under the laws of some other jurisdiction but is not legally recognised in Hong Kong.
The Court of Appeal held that such interpretation breached article 25 of the Basic Law, which provides that “All Hong Kong residents shall be equal before the law”. It followed that the dependent visa policy would be unconstitutional on the basis that it discriminates on the ground of sexual orientation, unless the difference in treatment could be objectively justified.
While it was recognised that courts will generally allow the legislature and/or government decision makers a wide margin of discretion when it comes to matters of socio-economic policy, the court held that where such a measure discriminates against individuals on grounds such as sexual orientation, there would have to be “very weighty” reasons justifying the policy.
In this case, the Immigration Department failed to satisfy the court that the difference in treatment was objectively justified taking into account its discriminatory effects.
Key takeaways for employers
This decision will be welcomed by employers for whom the inability to secure immigration approval for the same-sex spouses of potential candidates has to date hindered recruiters' efforts to secure and retain the best possible talent in the international market.
Readers should understand that this is a first instance judgment and it may be that an appeal is launched on the part of the Immigration Department. If so, we will monitor it closely.