Hong Kong: Director of Immigration v QT, FACV No. 1 of 2018 on appeal from CACV No. 117 of 2016

The respondent QT[1] is a British national.  She is homosexual and met her partner, SS, who has dual South African and British nationality, in 2004.  In May 2011, QT and SS entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004.

  SS was offered employment in Hong Kong and granted an employment visa to come and work here.  On 23 September 2011, the couple entered Hong Kong, SS on the strength of her employment visa and QT as a visitor.  Since their arrival in Hong Kong, SS’s employment visa has been extended from time to time as has QT’s visitor status.  As a visitor, QT is not permitted to work or study in Hong Kong and, unlike those who enter under a dependant visa, her period of stay may not qualify her for eventual permanent resident status.  The couple live in Hong Kong together and SS supports QT.  There is no dispute that their civil partnership is a genuine relationship and that they live together as a family.

After making unsuccessful applications for a dependant visa and also for an employment visa in her own right, on 29 January 2014 QT submitted the application for a dependant visa.

The Court of Final Appeal of the Hong Kong Special Administrative Region ruled that the Director has not justified the differential treatment against QT:

106.  The “core values” mentioned by Ma CJ are often referred to as the “suspect or prohibited grounds” identified in Art 22 of the Bill of Rights as including “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.[135] It is clear that discrimination on the ground of sexual orientation is included within this assemblage of suspect grounds, sexual orientation falling within the words “other status”.[136]

107.  Discrimination on any of those grounds is regarded as especially  pernicious because, as Lord Walker pointed out in Carson:[137]

    “They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.”

108.  Accordingly, where a person is subjected to differential treatment on any of the suspect grounds, including sexual orientation, the government’s margin of discretion is much narrowed and the court will subject the impugned measure to “particularly severe scrutiny”.[138] 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”[139] to justify the challenged difference in treatment, applying the standard of reasonable necessity.