Pride parade, Hong Kong, Nov. 25, 2017. (Photo: Shutterstock)

 

Global law firms are applauding a decision handed down Wednesday by Hong Kong’s highest court that concluded same-sex couples should be granted spousal visas.

The Court of Final Appeal dismissed an appeal submitted by the Hong Kong Department of Immigration and said the government’s practice of treating visa applicants differently based on their marital status was not justifiable.

The nearly four-year-old case of “QT,” a British national seeking a visa as a spousal dependent of her same-sex partner, had been closely watched by Hong Kong’s legal and financial services community. In April, 16 global and local law firms and 12 foreign banks, represented by Davis Polk & Wardwell, sought to join the case on behalf of QT as a third party. But the court denied their request.

So on Wednesday, the international business and legal communities were especially pleased by the court’s decision, which came less than two months after it had denied their request to join the case.

“This is a positive outcome, not only for QT but also for the people and business community of Hong Kong,” the participating law firms and banks said in a statement issued by Davis Polk.

“By upholding the rights of all people in Hong Kong, regardless of sexual orientation, to obtain dependent visas for their spouses to live and work in this city, this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as Asia’s preeminent global center for commerce,” said the group, which included Latham & Watkins, Morrison & Foerster, Clifford Chance, Linklaters, Herbert Smith Freehills and Akin Gump Strauss Hauer & Feld.

Kathryn Weaver, a Hong Kong partner with the U.K. firm Lewis Silkin, said the decision puts Hong Kong ahead of its close competitor Singapore as an attractive location within the Asia Pacific to relocate for work.

“The professional services sector in Hong Kong has long bemoaned the city’s stance on dependent’s visas for same-sex couples,” said Weaver. “It has not only led to a less diverse talent pool but has been widely considered as unfair and discriminatory.”

In 2014, the Immigration Department denied QT a visa as a dependent of her same-sex partner on the ground that her application fell out of its existing policy of a married couple consisting of one male and one female. QT, who had entered a civil partnership with her partner in the United Kingdom prior to moving to Hong Kong, filed a judicial review challenging the government but lost at the high court, where Judge Thomas Au also opined that the case attempted to get same-sex marriage recognized in Hong Kong through the back door.

In 2017, the Court of Appeal overturned the high court’s decision, taking the side of QT, saying she was unlawfully discriminated against by the immigration department’s visa policy. After hearing arguments on June 4, a five-judge panel led by Court of Final Appeal Chief Justice Geoffrey Ma upheld the Court of Appeal decision. Weaver said it was relatively speedy for the judges to rule within a month after the hearing. “It suggests that this was an easy decision for the judges to reach,” she said.

The Court of Final Appeal decision also made clear that the case was not about the recognition of same-sex marriage in Hong Kong. Marriage in Hong Kong remains heterosexual and monogamous, wrote the justices. “By definition, it is not a status open to couples of the same sex.”

“This ruling paves the way for greater LGBT+ equality in Hong Kong,” the law firm and bank group that supported QT said in a statement. “[We] will continue to advocate policies and practices that promote LGBT+ equality and inclusion.”