Legal update: Same sex spouses to receive dependant visas after policy reversal by Immigration Department

In its judgment handed down on 4 July 2018 the Court of Final Appeal upheld the Court of Appeal’s decision that the Director of Immigration’s exclusion of same-sex married or otherwise formalised couples from the dependant visa policy was unlawful.

Effective 19 September 2018, the Immigration Department has revised its policy to reflect the decision, including same sex spouses as eligible for dependant visa applications.

The Court of Final Appeal’s decision was reached following consideration of the following points:

1. The Director of Immigration conceded that the policy’s treatment of same sex spouses amounted to prima facie discrimination. He was therefore required to establish that excluding same sex spouses from the policy was a proportionate means of securing a legitimate aim. The Director failed to do so, claiming that the legitimate aim at hand was to attract foreign talent to Hong Kong while maintaining strict immigration control.The Court however dismissed this argument on the basis that no correlation can rationally be argued that a person’s talent can be attributed to their sexual orientation.The Court quoted Poon JA’s findings at the Court of Appeal level as follows: “…the Director’s avowed aim of striking the balance is applicable to all potential talented people that Hong Kong wishes to attract irrespective of their sexual orientation”.
2. The Director argued in the alternative that he, as a subsidiary legitimate aim, was entitled to draw a “bright line” to manage the administrative burden placed upon him while assessing applications made under the policy.The Court, although accepting that drawing a “bright line” between those who do and do not qualify for dependant visas to promote “legal certainty and administrative workability and convenience” were legitimate aims, did not accept that the policy was rationally connected to them.

The Court summed up simply its position in respect of the Director’s bright line argument as follows: “Given that the Policy cannot be justified as a measure rationally connected to the avowed “talent” and “immigration control” objectives, it is not saved by the “bright line” aim.”

Previously, same sex spouses could only be granted long stay visitor’s visas (permission to stay) at the discretion of the Director of Immigration. Visitor’s visa holders are not allowed to work or study in Hong Kong, and time spent in the territory does not accrue towards the seven-year requirement for permanent residency. On the other hand, holders of dependant visas can work and/or study freely, and time spent locally does accrue towards the seven-year permanent residency requirement.

In order to be granted a dependant visa, a same sex spouse must meet normal immigration requirements and the following original specific eligibility criteria of the Policy:

 (i) there is reasonable proof of a genuine relationship between the applicant and the sponsor;

 (ii) there is no known record to the detriment of the applicant; and

(iii) 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.

In addition, the same-sex relationship must be a civil partnership, civil union or marriage.

Readers must be reminded that this does not change the Government’s stance towards same-sex marriage locally, as this is still not permitted in Hong Kong.

If you would like to discuss any of the matters raised in this article, please contact:

Kim Boreham (for discrimination advice)
Partner | E-mail

Russell Bennett (for discrimination advice)
Partner | E-mail

Eddie Look (for immigration advice)
Partner | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.