By Melissa Cyrill
Last month, Hong Kong’s Court of Appeal ruled in favor of granting a dependent spousal visa for a British woman who identifies as LGBT.
The unanimous approval by the Court was welcomed by the international business and banking community in Hong Kong, and could open up the same-sex debate in the region and spur further policy reform. The ruling also has implications for multinational companies (MNCs) looking to relocate their overseas LGBT staff to Hong Kong.
The appellant in the case is a British lesbian expatriate, identified as ‘QT’, who entered into a civil partnership with ‘SS’ in 2011 in England. Under English law, same-sex partners have the same legal rights as married spouses.
Hong Kong law, on the other hand, does not recognize same-sex unions: marriage is defined strictly in heterosexual terms – between a man and a woman. As such, the Immigration Department denied QT a dependent spousal visa when she wanted to join her partner, who had been offered a job in Hong Kong.
QT first lost her case at the Court of First Instance, where she applied for judicial review, and subsequently, approached the higher Court of Appeal. The higher Court overturned the previous judgment, allowing QT to seek a dependency visa through her same-sex partner.
It must be noted that the Immigration Department still has the authority to lodge a final appeal, and that QT has not yet reapplied for the visa.
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Legal implications of the ruling
The ruling by the Court of Appeal makes mention of the “irrationality” of the Immigration Department’s decision and its “indirect discrimination” – signaling a possible mood change in Hong Kong’s judicial establishment.
In his defense to the objections raised by the lower court, chief High Court judge Andrew Cheung Kui-nung observed that Hong Kong’s continued ability to attract people with the right talent and skills is directly affected by its ability to allow their closest dependents to live with them. Cheung also wrote, “Times have changed and an increasing number of people are no longer prepared to accept the status quo without critical thought”.
The Appeal judges collectively clarified that the dependent visa was no more than a “privilege”.
According to them, the argument that granting dependent visas to gay couples – who are already in legal partnerships in their country of origin – will endanger the institution of marriage was not a feasible one.
Further, couples who are in same-sex marriages or civil partnerships overseas would be able to produce the same proof of relationship, such as a certificate or license, as heterosexual couples.
Entitlements of same-sex couples unchanged
While the decision by the Court of Appeal is welcome, it does not change the current entitlements of same-sex couples in Hong Kong. For that to happen, major laws and national regulations will need to be legislated and/or amended. Towards this, the Equal Opportunities Commission has repeatedly asked the Hong Kong government to consider a comprehensive legal framework for the LGBT community, and introduce policy measures to recognize same-sex relationships and protect LGBT rights.
However, regardless of the dissent at various levels of the judicial and administrative establishment – the case has important implications for overseas firms.
HR managers often face challenges in dealing with discrimination against their LGBT employees in the Chinese-ruled financial hub, which can be a barrier to attracting overseas talent.
This is why prominent financial firms such as Goldman Sachs Services (Asia) and Morgan Stanley Asia offered their support to QT in court, though their offer was declined.
RELATED: LGBTQ+ in the Chinese Workplace: Fostering an Inclusive Environment
Window of opportunity for legal reforms in Hong Kong
Worldwide, there is increasing support for LGBT rights, and 24 countries currently allow gays and lesbians to marry, including many major Western countries. More recently, same-sex marriage was legalized by popular vote in the Republic of Ireland in 2015; it is a major ongoing debate in Australia.
However, in East and Southeast Asia, the legal environment remains largely conservative: same-sex relationships are illegal in Singapore and Japan, although Japanese authorities do provide “designated activities” visas to the dependents of foreign same-sex spouses. In May this year, Taiwan became the first country in Asia to legalize same-sex marriage, after its constitutional court ruled that existing laws defining unions as between a man and a woman were invalid.
If Hong Kong wants to continue to flourish as the world’s leading financial hub, it will need to institutionalize diversity, inclusion, and equality – and that includes the legal recognition of homosexual, bisexual, and transsexual rights.
The ruling by the Court of Appeal is an important juncture in the same-sex debate in Hong Kong – it presents a critical opportunity to reconsider the city’s old laws, remove the scope for all kinds of discrimination, and open up conversations on the social, religious, and legal thought on sexual rights.
A progressive mandate will boost Hong Kong’s credibility in the region, and will ensure that its labor market remains among the most competitive in the world.
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