Most Asian countries, including Singapore, Malaysia and China, do not recognise same sex marriages or civil partnerships. That is also the case in Hong Kong, but that could be about to change. A recent high-profile case is being closely watched to see whether it will result in changes to visa entitlements for same sex partners, with potential implications for the expansion of pension and other work-related benefits to previously ineligible same sex partners by employers seeking to attract talent to the city.
Currently, partners in same sex relationships – like all other applicants — are allowed to stay and work in Hong Kong if they meet the relevant immigration criteria. While they are not eligible for dependant visas, they can get a work visa by finding a job and an employer willing to sponsor their visa application of their own accord.
But a recent legal case is calling into question Hong Kong’s tough stance. The case was supported by financial institutions including Goldman Sachs, Royal Bank of Canada, Bank of New York Mellon Corp, Societe Generale and others who say a lack of recognition for same sex marriages and civil partnerships impedes their ability to recruit talent from overseas.
“It’s critically important that we have policies and benefits in place that allow us to attract and retain the best talent,” Morgan Stanley’s head of diversity and inclusion in Asia, Claire Goodchild, told Bloomberg in November.
The ball was set in motion by QT, a UK lesbian who met her partner SS in 2004 and entered into a civil partnership with her in 2011. In the UK, civil partners enjoy the same benefits as married couples. But as QT and SS found out, that is not the case in Hong Kong. When SS was offered a job in Hong Kong in 2011, she applied for an employment visa and named QT as her accompanying dependant. However, QT’s dependant visa was rejected by the Hong Kong Immigration Department because QT was not considered a spouse under Hong Kong law and was deemed ineligible for dependant status.
QT appealed the decision. She argued that treating same sex couples who were legally married or in a civil partnership differently from married heterosexual couples was indirectly discriminatory. She added that the decision not to give her a visa was discriminatory and unjustified and breached Article 25 of Hong Kong’s mini constitution, known as the Basic Law, which states that all residents are equal before the law. It also contravened Article 22 of the Hong Kong Bill of Rights, she said, which bans discrimination “on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The Director of Immigration countered that different treatment was justified because the department had to strike a balance between maintaining Hong Kong’s ability to attract people with the right talent and skills by allowing their close dependants to come with them, and maintaining effective immigration control in view of Hong Kong’s growing population and small size.
The Court of Appeal disagreed and ruled that QT should be granted a dependant visa. It found that to attract the most talented and skilled people, dependant visas should be open to all irrespective of sexual orientation. In terms of quality of talent, it found that whether a spouse is heterosexual or gay cannot possibly be relevant and that immigration rules should not be discriminatory. It also rejected the Director’s argument that he was obliged to follow the definition of spouse as laid out in Hong Kong law, although the court’s ruling did not change this definition.
Vivien Yu, an immigration lawyer in Baker McKenzie’s employment practice in Hong Kong, said her firm had been handling applications for same sex partners for more than 15 years.
“Traditionally, same sex partners who are in genuine long term relationships with employment visa holders would be granted prolonged visitor visas,” she says. “We have also filed applications after the QT case. However, the Immigration Department has yet to provide feedback as to whether the same sex partners are now eligible for dependent visas.”
As the Immigration Department is appealing the decision, she expects visa applications for same sex partners submitted after the QT case to take longer to process or be put on hold, she added.
If the principle is implemented, the ruling would bring Hong Kong into line with places like the UK and Australia, said employment lawyer Fiona Loughrey, a partner at Simmons & Simmons.
“This plaintiff bravely has taken the opportunity to challenge the current position in Hong Kong,” she said. “If her action is upheld, the government in my view should consider itself compelled to revisit the legal position on discrimination against same sex couples who are applying for dependent visas.”
If upheld, the case could also unlock access to workplace benefits for same sex partners, Loughrey said.
“A potential point to look at is whether the Hong Kong courts will follow the history of some early decisions in the UK, which aimed to extend sex discrimination protection to cover sexual orientation; if followed, it may be that the door will be opened to people to make claims for pensions and work benefits for their same sex or civil partners,” she said.
It is worth noting that the equal opportunity laws in Hong Kong do not currently protect against discrimination on the basis of sexual orientation, only against discrimination on the basis of gender and pregnancy, and a few other attributes such as race, she added.
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