Civil partnerships and same sex marriages not recognised for the purpose of dependant visas in Hong KongOn 11 March 2016, the Hong Kong Court of First Instance1 dismissed an application (“Application”) for judicial review of a decision of the Director of Immigration to refuse to grant a dependant visa for the same sex civil partner of a Hong Kong employment visa holder (“Decision”).
Under Hong Kong laws, only a spouse or a child under the age of 18 of a person who is working in Hong Kong can apply for a dependant visa to stay in Hong Kong. The Director of Immigration made the Decision on the ground that the applicant was not regarded as the “spouse” of her civil partner, because the existing immigration policy on admission of a spouse as a dependant “is based on monogamy and the concept of a married couple consisting of one male and one female”.
The applicant applied for leave to apply for judicial review of the Decision. After leave was granted, the Director of Immigration informed the applicant that she was not entitled to a dependant visa, but based on humanitarian considerations relating to her health, he was nevertheless prepared to waive the conditions of her stay in Hong Kong as a visitor so that she could study or work in Hong Kong without seeking prior approval from the Director of Immigration. The applicant refused to accept that proposal and proceeded with the Application.
The Court dismissed the Application. The Court considered the context of the Decision – that there is a need for immigration control in Hong Kong, and that Hong Kong wishes to attract talented and skilled foreigners – but also highlighted the need to be able to draw a clear line between who is and is not entitled to a dependant visa. It was decided that given the context of tight immigration control and the legal meaning of marriage as recognised in Hong Kong (i.e. a monogamous marriage between one man and one woman), the Director of Immigration is entitled to draw a bright line between married and unmarried persons, and only allow a spouse in a valid marriage recognised under Hong Kong laws to stay in Hong Kong as a dependant. This was the outcome despite the fact that the couple in question had been in a “permanent and settled relationship” since 2004, and had entered into a civil partnership in 2011 in accordance with UK laws, prior to moving to Hong Kong.
Accordingly, it was held that it is not discriminatory to differentiate between persons who are in a marriage which is recognised by Hong Kong law, and those who are not, as these two categories of persons are in a sufficiently different situation to justify the difference in treatment under the immigration policy. The Court further held that as a result of finding that the immigration policy and the Decision were not discriminatory, there could be no question of whether the applicant’s rights had been infringed under either the Basic Law or the Bill of Rights.
The applicant’s lawyer has indicated publicly that the applicant will appeal against the Court’s decision in this case. Unless the Court’s decision is overturned on appeal, or there is a significant shift in the immigration policy, it appears that the only way in which a person in a civil partnership (whether same sex or not) or a same sex marriage will be able to obtain a dependant visa to live in Hong Kong is if those relationships are recognised as a result of changes to matrimonial laws in Hong Kong. Such an outcome seems unlikely at any time in the near future, given the lack of basic anti-discrimination legal protection on grounds of sexual orientation. According to a recent Equal Opportunities Commission report, a majority of the Hong Kong public support the introduction of legislation protecting against discrimination on grounds of sexual orientation, gender identity and intersex status. However, that public support is not yet reflected in the laws of Hong Kong.
The consequence of a civil partner or same sex wife or husband not being granted a dependant visa is that he/she will only be permitted to enter Hong Kong on a tourist visa, student visa or employment visa. Whilst in Hong Kong on a tourist visa, a person cannot obtain a Hong Kong Identity Card, cannot work or study, and must leave Hong Kong at the end of the visa period (which is 6 months for most nationalities).