British expatriate QT never thought that she would play a role in establishing a landmark precedent for LGBTQ rights in Hong Kong. She decided to move to the city in 2011 so that her same-sex partner SS could take a job at a tech company. They trusted that the human resources company helping them relocate would be able to secure the appropriate documentation for them both.
At the time, the couple – who entered into a civil partnership in the UK in 2011 – did not foresee that the Immigration Department would eventually reject a dependent visa for QT on the grounds that their same-sex union is not recognised under Hong Kong law.
QT filed a judicial review in 2014, after her second application was rejected. Whilst Immigration regularly grants visas to heterosexual couples, QT had no choice but to live in the city under a tourist visa, which barred her from working and staying in Hong Kong for more than six months. It also precluded her from accessing certain public services.
QT. Photo: HKFP/Catherine Lai.
“My intention was to stay with my wife,” QT told HKFP. “I wanted to stay with her, I wanted to support her, I wanted to be with her, so we could go through this whole thing together – that was my only intention, so that we wouldn’t be separated. Because why should we be separated? You wouldn’t expect that from any other couple.”
The Court of Appeal ruled in favour of QT last month, meaning that other same-sex spouses can now apply for dependent visas, including local residents who have married their spouses abroad. According to QT’s solicitor Michael Vidler, they should be granted as long as the government does not appeal, and they can satisfy other criteria, which are also required of heterosexual couples.
Stress and expense
QT’s inability to work in Hong Kong created stress for her and her partner, and she said it made the relationship at times “quite a roller-coaster ride.” She added that they both fell ill as a result. Adding to the pressure was the expense of the flights every six months and the fact that SS had to support her mother financially.
“It’s very difficult as a couple, to not be able to contribute. And I want to be able to contribute but I can’t – I want to be able to help but I can’t. It’s not nice to see the person you love have to financially struggle… It’s very difficult to have that basic human right [to work] stripped away from you.”
She said that if they had known that getting a dependent visa for her would be a problem, they “definitely would have thought long and hard” about the decision to come to Hong Kong.
“We probably would have done it differently, me applying for a job first to see if I could get a job here – but the company really wanted her to be over here to help expand the business out.”
QT had applied for jobs in Hong Kong after she failed to obtain a dependent visa, but she said her employment visa was rejected by the immigration department, citing the reason that her skills did not match the job she was applying for.
Her solicitor, Michael Vidler, said that the inability of same sex spouses to obtain a dependent visa deters skilled people from coming to Hong Kong to work. Spouses may not be able to find employment because there are no jobs available at the time, or those available did not exactly match their skill set – something that a dependent status is supposed to accommodate.
In fact, the issue prompted 12 financial institutions to make a rare intervention in the case in order to tell the court about how it may affect Hong Kong’s competitiveness and ability to hire talent from abroad. Their bid to intervene was ultimately rejected, but Vidler said the court allowed them to rely on the banks’ arguments.
“The court acknowledged and accepted the business case against LGBTI discrimination, identified by the 12 banks who sought to intervene: that it is in the best interests of Hong Kong to attract the best talent to work here, irrespective of sexual orientation; hence the government should not have discriminatory immigration policies against lesbian and gay visa applicants,” he said.
The court ruled that the Director of Immigration’s decision not to grant QT a dependent visa based on the definition of marriage as between a man and a woman amounted to indirect discrimination. However, it also said that granting QT a dependent visa did not give rise to a recognition of same-sex unions.
Despite this point, Vidler considered the judgement to be a landmark ruling for the LGBTQ community, as the chief judge noted that hallmarks previously considered to be exclusive to heterosexual marriage also applied to same-sex partnerships.
“I believe it is the first time a Hong Kong court has acknowledged that oneness, togetherness, joint-ness and mutuality, previously seen as the exclusive hallmarks of heterosexual marriage, are also hallmarks of same-sex marriage and civil partnership. The court also recognised for the first time that the concept of marriage, as being the voluntary union between one man and one woman to the exclusion of all others, has only been so in Hong Kong since the 1970’s and not irreversibly embedded into Hong Kong culture since ancient time as the government has always argued.”
Although QT ultimately wishes to live in Hong Kong as a resident, rather live as a visitor as she has been doing for the last six years, her Hong Kong plans have had to be put on hold and she hasn’t applied for a dependant visa again. Particular personal circumstances have required her to be in the UK in the near future. But she said she is happy that it will allow other same-sex couples to be granted rights under a dependent visa.
“I know a couple of friends who are also waiting for dependent visas, so… it’d be good news for people who are also in similar situations as well.”
Vidler said the government should drive through anti-discrimination legislation to bring Hong Kong up to international standards, saying discrimination against LGBTI members of the community is Hong Kong’s “blind spot.”
“Despite the government promoting Hong Kong as a world city, free of discrimination, LGBTI members of our community however are unprotected from discrimination in the private sphere, such as in the private workplace, private housing or provision of private services, as we still do not have LGBTI discrimination legislation in Hong Kong. If we want to maintain our status as a world city and leading financial centre with a diverse population and attracting the best talent, we need a government which will be proactive in ensuring its policies are not discriminatory and which will enact LGBTI discrimination legislation without further delay and without further excuses.”
“Even though it’s a win at the moment,” QT added, “we are still a long way from complete LGBT rights … from equality.”