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Same-sex couples and civil partners now eligible to apply for dependant visas in Hong Kong

The Hong Kong government issued on 18 September 2018 a revision to the immigration policy for entry of non-local dependants (the ‘‘New Policy’’), easing the visa rules for legally-recognized same-sex couples and civil partners willing to work or reside in Hong Kong.

Traditionally, the definition of a ‘‘legal spouse’’ was confined to heterosexual married couples only. Based on this restrictive definition, and under the previous immigration policy in force, dependant visa applications were only open to heterosexual married couples with an eligible sponsor (i.e. Hong Kong permanent residents or foreigners with a valid employment visa).

As a result, same-sex couples were, until very recently, not eligible to apply for a dependant visa allowing them to reside, study or work in Hong Kong, or in fact carry any lawful activity in Hong Kong without any restrictions.

According to the New Policy, which came into force on 19 September 2018, a person who has entered into a (i) same-sex civil partnership, (ii) same sex civil union, (iii) “same-sex marriage”, (iv) opposite-sex civil partnership or (v) opposite-sex civil union outside Hong Kong with an eligible sponsor in accordance with the local law in force of the place of celebration and with such status legally and officially recognized by the local authorities of the place of celebration, will be eligible to apply for a dependant visa/entry permit for entry into Hong Kong.

This New Policy came in light of the well-publicized Court of Final Appeal’s decision in QT vs Director of Immigration [2018] HKCFA 28 (the ‘‘Decision’’), where it was held that the Immigration Department’s decision to deny a dependant visa to a woman who legally entered into a civil partnership in the UK with another woman working in Hong Kong was discriminatory on sexual orientation. Such refusal was also seen as counterproductive and against the aim of attracting foreign talents.

Notwithstanding this landmark decision, it should be noted that the original approvability test remains unchanged. Indeed, a dependant visa application will be favorably considered by the Immigration Department if the following criteria are met:

  1. there is reasonable proof of a genuine relationship between the applicant and the sponsor;
  2. there is no known record to the detriment of the applicant; and
  3. the sponsor is able to support the dependant's living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.

It is foreseen that the Decision and the New Policy will increase Hong Kong competitiveness in an attempt to attract foreign talents as well as to promote equal opportunities and a diverse working environment, regardless of their sexual orientations. This is a much-welcomed step for international institutions and banks based in Hong Kong as many of them have experienced difficulties in recruiting foreign expats due to restrictive immigration policies.

More than 20 visas have been issued to same-sex couples by the Immigration Department since August 2018.

However, and despite the new Policy, it is interesting to note that the meaning of ‘‘spouse’’ and the definition of ‘‘marriage’’ under the Hong Kong matrimonial law remain unchanged. The government spokesman reiterated that ‘‘a valid marriage under Hong Kong law is heterosexual and monogamous and is not a status open to couples of the same sex’’.

For more information on services provided through Masson de Morfontaine Ltd, please contact us via contact form or at +852 3953 4880.

 

 

 

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