Law in Transition: QT v Director of Immigration in Context

The landmark decision by the Court of Final Appeal (“CFA”) in QT v Director of Immigration [2018] HKCFA 28 is being celebrated as a major victory by the lesbian, gay, bisexual, and transgender (“LGBT+”) community and supporters in the region, which has recently witnessed a marked shift in public sentiment towards greater acceptance of same-sex partnership rights and LGBT+ inclusion more broadly. In one of the most closely followed LGBT+ rights cases in Hong Kong in recent years, the CFA ruled that the Immigration Department’s disparate treatment of same-sex and opposite-sex couples for purposes of its dependent visa policy constituted unlawful discrimination on grounds of sexual orientation. The case received unprecedented attention as well from the business community, where a group of leading financial institutions and law firms submitted affidavits to the Courts to highlight the effects of the policy on their employees and their ability to attract and retain global talent.

QT’s Road to the CFA

The case was brought four years ago by a British lesbian expatriate, known as “QT” in court papers, and her same-sex partner known as “SS”. The facts were not in dispute. QT and SS have been together since 2004, and entered into a legally valid civil partnership in 2011 in England. At the time, same-sex marriage was not available, and became legalized only in 2014. Since then, same-sex couples in England may choose to enter into either civil partnerships or marriages, and both forms are broadly afforded the same rights.

Shortly after the couple entered into a civil partnership, SS obtained a position with a company in Hong Kong, and the couple relocated. While SS entered Hong Kong on an employment visa, QT entered as a “visitor.” Unlike dependent visa holders, non-visa holders or those on a prolonged tourist visa are not allowed to work or study in Hong Kong, are required to leave and re-enter every three or six months, and are not eligible for a Hong Kong identification card. Those without a Hong Kong identification card have limited access to public services and face difficulties in day-to-day life, such as opening up bank accounts and subscribing to phone service plans.

In January 2014, QT applied for a dependent visa, indicating SS as her sponsor on the application form. Under the Department’s dependent visa policy, application for entry as a dependent will normally be considered for “husband/wife to join resident spouse” or unmarried children under 18 years of age to join their resident parents. The Immigration Department rejected QT’s application on the ground that the couple as outside the scope of the policy. Here, the Department based its interpretation of “spouse” not with reference to the couple’s status under their home jurisdiction where their union took place, but rather on the definition of marriage under the Hong Kong Marriage Ordinance, which recognizes opposite-sex marriages only – i.e., “the voluntary union for life of one man and one woman to the exclusion of all others” (emphasis added).

In October 2014, QT filed a judicial review to challenge the Department’s denial of her visa application. At issue was whether the denial constituted unlawful discrimination on account of her sexual orientation.

In March 2016, the Court of First Instance dismissed QT’s application, affording deference to the Department’s adoption of the legal definition of marriage under the Marriage Ordinance.

QT appealed her case in the Court of Appeal (“CA”). On 25 September 2017, the CA issued an opinion in QT’s favor, reversing the lower court’s opinion.

The case was then appealed in the CFA. The CFA heard substantive oral arguments from the two sides on 4 June 2018. One month later, on 4 July 2018, the CFA returned a decision reaffirming the CA’s ruling in favor of QT.

The CFA Decision

In the opening paragraph of its judgment, the CFA highlighted the significance of the issues at stake: “[the] appeal raises important issues concerning equality under the law and, specifically, whether there has been unlawful discrimination on the part of the Director of Immigration in the administration of his policy regarding the issue of dependent visas.”

The CFA answered the question in QT’s favor by concluding that the policy was not rationally connected to the Department’s stated dual aims of the dependent visa policy: attracting and maintaining talent, and immigration control.

Arguing on QT’s behalf was Dinah Rose QC, assisted by barrister Timothy Parker and instructed by Vidler & Co. As QT’s counsel pointed out, the policy ran counter-productive to the public policy aim in recruiting talent to Hong Kong. Instead of drawing in talent, it had the exact opposite effect of discouraging new talent to live and work in Hong Kong.

Neither was the “bright line” aim of administrative convenience a valid justification, since permitting same-sex couples to obtain dependent visas would not impose any undue administrative burdens given the evidence to prove the existence of a partnership (e.g., marriage certificate) is the same between same-sex and opposite-sex couples.

The CFA also noted that the Department’s benchmarking to Hong Kong laws and public policy was applied discriminatorily and inconsistently. As the CFA pointed out, while marriage laws around the world differ in terms of age, consent, consanguinity, polygamy and other factors, there is no similar review between local and foreign laws based on any such factors. For instance, it was conceded by Lord Pannick, the Department’s barrister, that in the case of polygamy, the policy treats a party to a polygamous union as eligible for a dependent visa, despite such unions being invalid under Hong Kong law.

While the CFA found that the policy did not satisfy the rational-basis test, it went out of its way to emphasize that the case warranted an even more stringent standard of judicial review. Instead of a mere “rational connection” between a policy and its stated aims, policies that discriminate on the basis of sexual orientation – deemed as a protected class under the Basic Law – are subject to a stricter standard of review of “particularly severe scrutiny.” As the CFA noted: “That does not mean that the measure can never pass muster, but it will require the government to provide ‘very weighty reasons’ or ‘particularly convincing and weighty reasons’ to justify the challenged difference in treatment, applying the standard of reasonable necessity.”

Notably, the Court made clear that the case did not involve the legality of marriage equality under Hong Kong law, implying that any challenge to same-sex marriage rights would need to be litigated in a subsequent case or through legislative means.

Proposed Intervention by the Financial and Legal Sectors

The case was of particular interest to the business community. In June 2017, shortly prior to the CA hearing, a group of 12 leading financial institutions took the unprecedented step of applying for leave to intervene in the case. The proposed intervention brief argued that the policy impedes the ability of the firms to attract to Hong Kong the world-class talent necessary to sustain Hong Kong’s role as a premier global financial and commercial center.

At the CFA stage, through coordinated efforts led by the LGBT+ Interbank Forum, a professional network of financial institutions (the “Interbank”) and the Hong Kong Gay and Lesbian Attorneys Network, a professional network consisting of LGBT+ legal professionals, law firms and in-house practices (“HKGALA”), intervention applications were submitted by a total of 31 firms, including 15 financial firms and 16 law firms, all member firms of the Interbank and HKGALA, respectively. The intervention applications were submitted on behalf of the 31 firms by Davis Polk & Wardwell, as pro bono counsel. Amnesty International, represented pro bono by Skadden Arps, separately submitted a proposed intervention affidavit to highlight human rights implications.

In many jurisdictions, third-party interventions in a pending litigation are typically achieved through amicus curiae (literally meaning “friend of the court”) submissions. For example, in the U.S., it is not uncommon to have private sector companies submit amicus curiae briefs on LGBT+ rights cases, including in Supreme Court marriage equality and discrimination cases. In Hong Kong, however, the courts typically require that parties submitting amicus curiae briefs offer specialist and disinterested legal expertise without advocating for a particular outcome by reference to their interests. In QT, the firms accordingly opted to seek leave to intervene in the appeal hearing by joining as interested third parties to offer their unique perspectives.

Although the proposed intervention applications in QT were ultimately denied, the substance of the evidence and perspectives provided by the financial institutions and law firms were nevertheless read into official record during the hearings and reflected in both the CA and CFA judgments.

QT in Context of LGBT+ Jurisprudence

As exemplified by the CFA decision in QT, legal mobilization towards the recognition of LGBT+ rights has been driven by strategic litigation through the courts. QT follows on from other notable LGBT+ rights cases, including Leung v Secretary for Justice (2006) (striking down as unconstitutional a criminal ordinance that set a higher age of consent for sexual activities between two males as opposed to between a male and female); Secretary for Justice v Yau Yuk Lung Zigo (2007) (a criminal law against homosexual activity was found to be discriminatory and an infringement of the constitutional right to equality protected under the Basic Law of Hong Kong, in which sexual orientation was deemed to be a protected status); and W v Registrar of Marriages (2013) (a post-operative transgender woman was granted the right to marry in their identified gender rather than their biological sex).

Running closely in parallel to the QT case has been another closely followed LGBT+ discrimination case, Leung Chun Kwong v Secretary for the Civil Service. The case was brought by a male civil servant seeking to overturn the decision of the Secretary for Civil Service that denied spousal benefits to his same-sex spouse. Leung won in the High Court in April 2017, though lost in the CA, in an opinion issued only three days before the CFA hearing in the QT case and by the same three-judge panel.

At the time of writing this, the Leung case is pending the submission of an application for appeal to the CFA. Should the case be heard by the CFA, a core issue will undoubtedly be whether the protection of “traditional marriage” can be used as a legitimate aim for the government’s differential treatment between same-sex and opposite-sex couples. The CFA in QT had expressly punted on this issue since this rationale was not raised at the lower and intermediate courts, despite a last minute effort by Lord Pannick to raise it during the CFA hearing.

The Changing Landscape

Just as the law is evolving on these issues, so is public opinion. According to a recent study issued by the University of Hong Kong’s Centre for Comparative and Public Law on July 3, 2018, support for same-sex marriage in Hong Kong has dramatically increased from 38% in 2013 to over 50% in 2017.

The study also found majority support (69%) for legal protections against sexual orientation discrimination. Presently, the four major discrimination ordinances in Hong Kong collectively make it unlawful to discriminate against a person on grounds of sex, disability, family status or race, but do not extend to cover sexual orientation or gender identity.

LGBT+ laws are in transition not only in Hong Kong but around the globe. In the U.S., the Supreme Court affirmed a constitutional right to marriage equality in Obergefell v. Hodges (2015). Last year, the Australian Parliament legalized same-sex marriage following a national postal poll finding majority public support for marriage equality. In May 2017, Taiwan’s Constitutional Court ruled in favour of same-sex marriage, instructing the Legislature to amend marriage laws accordingly by May 2019. The India Supreme Court is hearing a challenge to laws criminalizing consensual gay sex, while efforts are underway in Japan to achieve marriage equality ahead of the 2020 Tokyo Summer Olympics.

At present count, 26 countries in all have achieved marriage equality, and a handful of countries without full marriage equality nonetheless legally recognize same-sex marriages and unions performed abroad. Yet, despite such progress, there are still large parts of the world where LGBT+ people lack legal protections and where homosexuality is still a criminal act, punishable by imprisonment or even capital punishment.

There is much social momentum around LGBT+ issues in Hong Kong. This October will mark celebrations for the fifth anniversary of Pink Dot, an outdoor celebratory festival in support of LGBT+ diversity and love equality, originally started in Singapore. Looking ahead to 2022, Hong Kong will become the first Asian city to host the Gay Games, a worldwide sporting event promoting LGBT+ and ally athletes. In the private sector, companies are placing increasing importance on LGBT+ workplace diversity and inclusion, and organizations like Community Business, the Interbank and HKGALA have provided a forum for LGBT+ professionals to network and collaborate on events and initiatives.

It remains to be seen whether the increased momentum in the social and corporate sectors will translate into legislative and legal advancement in Hong Kong. The upcoming LGBT+ discrimination cases, including the Leung case, present opportunities for development of jurisprudence on issues that impact the fundamental rights and dignity of many in our community.