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Hong Kong appeals court grants spousal visa to lesbian couple

[JURIST] The Hong Kong High Court of Appeal [official website] ruled [judgment, PDF] Monday that a British lesbian should be granted a spousal visa to join her partner who works in the city.

The court effectively overturned the decision of the Hong Kong Immigration Department [official website], finding no justification on "indirect discrimination on account of sexual orientation" and ordering the Department to submit an agreement between it and the woman within 28 days.

According to the Department, the woman was refused a visa because she was not a "spouse," which applies only to husband and wife in a heterosexual and monogamous marriage, the only marriage recognized under Article 37 of the Basic Law [text, PDF]. Furthermore, according to the Director, the Department's policy is "to strike a balance between maintaining Hong Kong's continued ability to attract people of the right talent and skills...to work, and the need for a system of effective,strict and stringent immigration control." However, the woman, known as QT, entered into a civil partnership under the Civil Partnership ACT 2004 in England.

According to Chief Judge Andrew Cheung,

There is no inherent or otherwise necessary or obvious link between immigration and the status of marriage that requires exempting the differential treatment under a particular immigration policy of married same‑sex couples or couples under a civil partnership from the requirement of justification. Excluding the foreign worker’s lawfully married (albeit same‑sex) spouse or civil partner under a civil partnership lawfully entered into in a foreign country from coming to Hong Kong to join the worker is, quite obviously, counter‑productive to attracting the worker to come to or remain in Hong Kong to work in the first place.. and excluding such a spouse or civil partner from entering or remaining in Hong Kong does not advance or help maintain our strict, stringent immigration policy either.
In May, Taiwan became the first Asian country to legalize [JURIST report] same-sex marriages. China legalized homosexuality in 1997, but same-sex marriage is not legal [SCMP report], and same-sex couples have no legal protections.

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