Hong Kong begins issuing visas to same-sex spouses as Supreme Court prepares to hear case

IMPACT – MEDIUM

What is the change? Hong Kong’s Immigration Department has begun issuing visas to same-sex dependent spouses.

What does the change mean? The move comes after Hong Kong’s Court of Appeal ruled last year that authorities were wrong to deny a visa to a British national seeking dependent status on the basis of a same-sex partnership. Same-sex spouses of Hong Kong residents may now obtain visas that are the functional equivalent of dependent visas, but the case has been appealed to Hong Kong’s Supreme Court, which could reverse the Court of Appeal’s ruling.

• Implementation time frame: Ongoing.
• Who is affected: Foreign nationals in a same-sex relationship with a Hong Kong resident.
• Business impact: If the ruling is upheld and visa issuance continues, Hong Kong could be an attractive option for foreign employees in same-sex marriages or partnerships who are relocating to Asia.
• Next steps: Arguments before the Supreme Court are scheduled for June 4.

Background: The case involves a British woman, identified as QT, who entered into a same-sex civil partnership in the United Kingdom in 2011 before moving to Hong Kong. Authorities denied QT a dependent visa, saying she did not qualify as a spouse for immigration purposes. QT sued, and the courts initially sided with the immigration authorities. The appeals court panel, however, reversed that decision in a 3-0 ruling. Authorities have now begun issuing visas to same-sex dependent spouses.

The visas are technically not dependent visas, but they confer the same immigration rights as those enjoyed by opposite-sex dependent spouses. Those applying for a visa based on a same-sex relationship with a Hong Kong resident should be prepared to provide a marriage certificate, if possible. In some cases, visas may be issued to applicants in a civil partnership with a Hong Kong resident, but it will be left to the discretion of the examining officer to determine whether to accept a civil partnership as evidence of a genuine relationship.

BAL Analysis: While the Immigration Department’s issuance of visas is a welcome development for same-sex spouses, the matter will not be resolved until after the Supreme Court determines the case’s outcome.

This alert has been provided by the BAL Global Practice group and our network provider located in Hong Kong. For additional information, please contact your BAL attorney.

Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.