Hong Kong’s top court hears landmark case over spousal visa for British lesbian

Jun 04 2018
Written by Jess Glass

A Pride parade in Hong Kong. (AARON TAM/AFP/Getty Images)

Hong Kong’s top court has begun to hear an appeal for a landmark case which could have a significant impact on LGBT rights in the territory.

A lesbian, who is known only as QT for legal reasons, is married under UK law to SS, with whom she first got a civil partnership in 2011.

The pair found themselves facing discrimination when SS relocated to Hong Kong for work – which would usually allow SS to bring a husband on a spousal visa.

However, as they are a same-sex couple and their marriage is not recognised under Hong Kong law, immigration authorities in the former British colony repeatedly rejected QT’s spousal visa application.

SINGAPORE - JUNE 30: A female participant holds up placard during the 'Night Pink Dot' event arrange to increase awareness and understanding of the lesbian, gay, bisexual and transgender community in Singapore at Hong Lim Park on June 30, 2012 in Singapore. The event is the fourth annual gathering held in support of the freedom to love. (Photo by Suhaimi Abdullah/Getty Images)

(Suhaimi Abdullah/Getty Images)

Without the correct visa to reside in the country, QT could only travel there on a tourist visa, which does not permit her to work.

QT then sued Hong Kong’s immigration director for denying her a spousal visa.

QT lost her case in the lower court, but then won at the Court of Appeal in 2017, which ruled that the immigration department’s refusal to grant her a visa was indirect discrimination.

The immigration department then appealed the Court of Appeal’s decision, which brought it to Hong Kong’s highest court, the Court of Final Appeal.

Hong Kong, CHINA: A gay and homosexual group lead a protest to government offices in Hong Kong 01 December 2006. The group were urging the government to end discrimination to homosexuals with regard to an organisation which promotes conversion therapy for homosexuals. Banner reads" Government leads campaign to insult gays and believes they need a cure" AFP PHOTO/MIKE CLARKE (Photo credit should read MIKE CLARKE/AFP/Getty Images)

(MIKE CLARKE/AFP/Getty Images)

QT has been supported by 31 major banks and law firms, as well as Amnesty International, many of which have sought to advocate for her directly in the case.

According to Reuters, QT’s lawyer Dinah Rose, QC, told the Court of Final Appeal that the immigration policy was discriminatory as it placed LGBT couples at a disadvantage compared to their heterosexual peers.

“Every single gay couple is unable to comply with the policy,” Rose said on Monday.

She added that it was striking that corporations and businesses – including Goldman Sachs and Barclays – had taken an interest in the case.

People take part in the Lesbian, Gay, Bi-sexual and Transgender (LGBT) parade in Hong Kong on November 6, 2015. Hong Kong's streets were coloured by rainbow flags as protesters marched in the city's annual gay pride parade to call for equality and same-sex marriage. AFP PHOTO / ISAAC LAWRENCE (Photo credit should read Isaac Lawrence/AFP/Getty Images)

(Isaac Lawrence/AFP/Getty Images)

Rose said: “The businesses are concerned the discriminatory way… is impeding their ability to recruit the best people, gay or straight, to work in Hong Kong, so Hong Kong can compete and thrive in an international market.”

Representing the government of Hong Kong, Lord David Pannick, QC, stated that the immigration department was not required to recognise same-sex marriages from abroad.

Neither same-sex marriage or civil partnerships are currently recognised in Hong Kong.

HONG KONG, CHINA: Matt Pearce (L) and Adrian Smith (R) wearing wedding dresses and holding placards run along with thousands of participants in the 10km Men's Open race of Standard Chartered Hong Kong Marathon 2005 in Tsim Tsa Tsui district of Hong Kong, 27 February 2005. Matt and Adrian joined the marathon as a running demonstration calling on the government to allow same-sex-marriage. "We chose the marathon because it is a middle class family event and it's that class of people who are preventing gays the right to marry," said Matt Pearce, protest co-ordinator and spokesman for activist group International Action. Homosexuality was only decriminalised in Hong Kong in 1991 and the age of consent for gays is 21 even though for heterosexuals it is 16. Gay marriage is still banned. Gay and lesbian groups say authorities have hardened their opposition since rule of Hong Kong was transferred in 1997 to China, where homosexuality, though lawful, is stigmatised. AFP PHOTO/TED ALJIBE (Photo credit should read TED ALJIBE/AFP/Getty Images)

(ALJIBE/AFP/Getty Images)

Pannick said that the director of immigration had the power to grant the visa, but was under no obligation, stating: “He may choose to go further than that, but he has no duty to do so.”

However, Chief Justice Geoffrey Ma stated that the immigration department’s stance on marriage was “inconsistent” as same-sex partners of consular staff were granted the visas.

Ma said: “It does call into question… whether this sort of difference in treatment is actually right, whether it is fair.”