SHEUNG WAN, Hong Kong
- Sept. 19, 2018
-- Following the dismissal of the appeal in QT v Director of Immigration in Hong Kong's Court of Final Appeal (FACV No. 1 of 2018), the Immigration Department reviewed its policies to include civil partnership and unions celebrated between same- or opposite-sex couples outside of Hong Kong as an eligibility condition to apply for a Dependant Visa. The revised policy has now been issued and is applicable to a same-sex civil partnership, same-sex civil union, same-sex marriage, opposite-sex civil partnership or opposite-sex civil union entered into by an applicant and the partner in accordance with the local law in force of the place of celebration and with such status being legally and officially recognised by the local authorities of the place of celebration. This also applies to applicant for a Dependant Visa of permanent residents.
In QT v Director of Immigration, QT lodged an application for judicial review against the Director's decision of refusing her application for entry for residence in Hong Kong as a dependant of her same-sex civil partner on the grounds that she was not a "spouse" under the prevailing dependant immigration policy at the time. The Court of First Instance (CFI) dismissed the application for judicial review, but the Court of Appeal reversed the CFI's judgment on appeal and ruled that the Immigration department indirectly discriminated a British women, identified as QT, by rejecting her application for a dependant visa. QT entered into a civil union in England before her partner had been offered an employment in Hong Kong and they both moved here.
Ordinarily, married spouses can apply to stay in Hong Kong with their partners under immigration laws. However, civil unions of same-sex couples are not recognized as a marriage under Hong Kong law and therefore, as argued by the Immigration Department, lack the eligibility criteria for a dependant visa. The judges examined at length whether the department indirectly discriminated QT or can rely on the protection of marriage as it is defined in Hong Kong. The judges held that, in this instance, the Immigration Department's reference to Hong Kong's definition of a marriage and immigration policy aim does not justify the discriminatory treatment.
The Immigration Department has been ordered by the Court of Appeal to come to an arrangement with QT and for QT to be issued a dependant visa. The Immigration Department has applied for and been granted leave to appeal to the Court of Final Appeal in Hong Kong to review this judgement. However, on July 4, 2018, the CFA dismissed the Director's appeal, upholding the Court of Appeal ruling. After advising that, as an interim measure, applications by civil partners would be accepted following the CFA ruling, the Immigration policies have now been formally amended to include specifically same-sex civil partnerships, same-sex civil unions, same-sex marriages, opposite-sex civil partnerships or opposite-sex civil unions which had been legally celebrated.
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