MoFo Contributes to Landmark Reversal of Hong Kong Immigration Department’s Policy Regarding Rights for Same-Sex Non-Local Dependents

 

Morrison & Foerster was part of a 31-strong coalition of international financial institutions and law firms which took part in an effort to revise the Hong Kong Immigration Department’s policy regarding non-local dependents’ visa/entry permit eligibility.

In the landmark case, QT v. Director of Immigration, the Hong Kong Court of Final Appeal ruled unanimously that the Immigration Department must grant a spousal visa to the petitioner, QT, a dependent spouse in a same-sex marriage, upholding a lower appellate court’s decision. QT, a British lesbian expatriate, sued the Hong Kong Director of Immigration in 2014 when she was denied a spousal visa, which would have allowed her to obtain resident status. QT and her partner, referred to anonymously as SS, came to Hong Kong after SS was offered an employment opportunity.

QT entered the country as a visitor and applied for her dependent visa, listing SS as her sponsor. However, the Department’s dependent visa policy at the time only considered applications for “husband/wife to join resident spouse” or unmarried children under 18 years of age to join their resident parents.

Even though the couple entered into a legally valid partnership on British soil, the Immigration Department denied their application on the grounds that their “marriage” was outside the scope of the policy. The Department’s old policy interpreted the meaning of “spouse” based on the definition of marriage under the Hong Kong Marriage Ordinance which recognizes opposite-sex marriages only.

In March 2016, the Court of First Instance dismissed QT’s request for a judicial review of the Immigration Department’s denial of her application. In September 2017, the Court of Appeal unanimously allowed QT’s appeal on grounds of sexual orientation discrimination. The Immigration Department appealed this ruling to the Court of Final Appeal. On March 23, 2018, Morrison & Foerster joined 15 other law firms and 15 international banks to petition the Court of Final Appeal to grant leave to intervene in the appeal, on the basis that the Department’s policy of refusal to grant spousal visa to same-sex spouses poses harm to international professional service and financial institutions operating in Hong Kong by impeding their ability to recruit the best professional talents to Hong Kong.

On Wednesday, July 4, 2018, the Court of Final Appeal unanimously ruled in favor of QT, holding that the Immigration Department’s policy amounted to unjustifiable sexual orientation discrimination. While the Court of Final Appeal had denied the law firms’ and banks’ intervention applications, it explicitly referred to the position taken by the group of law firms and banks in the Court’s judgment. Thus, when reaching this landmark decision, the Court clearly had the group’s submission in mind and was persuaded by the harm to the employers as described in the application.

The Court of Final Appeal’s judgment prompted the Director of Immigration to review and revise the Department’s policy. The revised policy went into effect on September 19, 2018 and provides that: “a person who has entered into a same-sex civil partnership, same-sex civil union, ‘same-sex marriage’, opposite-sex civil partnership or opposite-sex civil union outside Hong Kong with an eligible sponsor in accordance with the local law in force of the place of celebration and with such status being legally and officially recognized by the local authorities of the place of celebration will become eligible to apply for a dependent visa/entry permit for entry into Hong Kong.”

The Immigration Department also acknowledged the position put forth in the law firm and bank coalition’s intervention applications in its press release, stating that: “The Policy also ensures that Hong Kong will continue to attract and retain people with the right talent and skills to come to and remain in Hong Kong by giving them the choice of bringing in their non-local dependents to live with them in Hong Kong.” This historic reversal of policy represents a major victory for employers in Hong Kong competing globally for talent, as well as the LGBT+ community in Hong Kong.

As a member of the coalition of major employers in Hong Kong’s financial and legal sectors, Morrison & Foerster is proud to have supported the QT case that led to this outcome, and will continue to advocate policies and practices that promote LGBT+ equality and inclusion.

The MoFo pro bono team supporting the case included Timothy Blakely, Jason Nelms, Daniel Levison, Jessica Chan, and Thomas Huang.