The government has granted a concession to the same-sex spouses of consular staff allowing them to stay in Hong Kong beyond the usual limits, HKFP has learned. Same-sex marriages are otherwise not recognised by government departments.
The concession, which was granted in June through a diplomatic note from the Chief Secretary for Administration’s Office, allows the same-sex spouses or civil partners of accredited Consulate officials to stay in the city for as long as the officials are in their post. The exception only applies to those holding diplomatic or official passports who are joining accredited consular staff with the support of local Consulates.
The British, Swiss, Swedish and Canadian Consulates separately confirmed to HKFP that they have received notice of the concession, which came after a number of Consulates-General held discussions with the Hong Kong government on the issue.
In an email to HKFP, a government spokesperson said that the measures were made “with a view to promoting friendly relations between international community and the HKSAR.”
“The measures do not imply recognition of same-sex partners as spouses of the officials in Hong Kong, nor have any effect on the domestic legislation of Hong Kong regarding same-sex marriage,” the spokesperson said.
A document seen by HKFP was issued by the government earlier this year informing some consulates of the new arrangements. It said that a meeting was held between the representatives of the missions of Australia, Austria, Canada, Czech Republic, Finland, France, Germany, the Netherlands, New Zealand, Switzerland, Sweden, the UK and the US with the Chief Secretary for Administration on January 5.
“There was consensus at the meeting that a practical approach would be useful for exploring the form of visa for same-sex spouses/partners, for example, a visa that is co-terminus with the tenure of the officials of Consulates-General and the EU accredited to the HKSAR.”
Swedish Community walks in Hong Kong Gay Pride, 8NOV. Speach by Acting Consul General Wictoria Amandustin Weinstock pic.twitter.com/TO6OUsXWXq
— Sweden in Hong Kong (@SwedeninHKandMO) November 10, 2015
There was no intention to seek recognition of same-sex partners as the spouses of the consular officials in Hong Kong, nor to interfere with Hong Kong’s same-sex marriage legislation, it added.
The letter stated that the Immigration Department would facilitate the entry and any extensions of stay for same-sex spouses or civil partners of accredited officials, as long as consulates provide a note and supporting documents stating the tenure of the accredited officials and the relationship of the person seeking entry. Visa fees would also be exempted, it said.
The Hong Kong government does not recognise same-sex unions of any form, maintaining the stance that marriage is the union of one man and one woman. Hence, same-sex couples who are married or registered outside of Hong Kong must face the consequences of the policy if they wish to live in the city. In March, the High Court turned down a legal challenge from a British lesbian, known as QT, who was refused a dependent visa from the Immigration Department because the government does not recognise her civil partnership.
Solicitor Michael Vidler, who represents QT, told HKFP that he has learnt that, since QT filed her case, representatives from 13 consulates in Hong Kong made high level representations to the HK government about the situation of same-sex spouses and partners of accredited consular staff.
“As a result of the representations, the Immigration Department has been granting dependant visa like visas to same-sex spouses/civil partners of accredited consular staff although avoiding the use of the term. These visas, like dependant visas, are granted for periods that track the periods of stay of the sponsor spouse/civil partner, with extensions being granted of 3 years on each occasion.”
They also allow the dependent to work visa-free, Vidler said.
The government said that “the existing immigration policy on admission of spouse as a dependant is based on monogamy and the concept of a married couple consisting of one male and one female in accordance with the laws of Hong Kong.”
Normally, people moving to Hong Kong on work or student visas can bring a spouse or children under 18 with them as dependents. Dependents of those on work visas can also work in Hong Kong. Other applications for dependents will be considered if there is “reasonable proof of a genuine relationship” and if the sponsor is able to support the dependent, says the government’s website.
But because same-sex spouses are not recognised, they must secure their own work or student visas, or apply for an extended visitor visa. Such visas are only effective for up to 180 days. Those on visitor visas do not have ID cards and will therefore have difficulty accessing public services requiring ID cards.
‘Bright line rule’
The concession for consular staff is also inconsistent with the court’s “bright line rule,” which means it conforms to the definition – one man and one woman to the exclusion of all others – in Hong Kong’s family law for the sake of clarity, said Vidler. He is appealing the case, which will be heard in June next year, arguing that the rule does not apply.
“[T]he idea is, if you have clarity, it needs to be consistent and exactly the same – one man and one woman to the exclusion of all others – clearly the Hong Kong government doesn’t do that,” he said.
The bright line rule also ignores human rights aspects and the fact that Hong Kong’s matrimonial laws contain different definitions of marriage, said Vidler.
“We’re saying it is clearly discriminatory – but for the fact that the client is gay, he would be recognised,” he said.
The diplomatic concession was issued after the court rejected a judicial review application of QT’s case. According to Vidler, his team was not informed of the concession although it has a bearing on the case. “The government has a duty of disclosure and candour in judicial review cases. We’re a little surprised we haven’t been informed by the Department of Justice and the Immigration Department of this recent development,” said Vidler.
Making the exception the rule
When asked about the concession, activists and lawmakers said they hoped the government would expand the rule to grant other registered same-sex couples the same rights.
“Of course we don’t hope that only diplomats get special rights in Hong Kong,” said Cyd Ho, a former lawmaker and founder of the LGBT advocacy group Big Love Alliance. “We hope that everyone will have equal rights.”
Billy Leung, vice-chair of the Pink Alliance LGBT activist group, said: “The government must acknowledge the changing landscape of the reality to allow not only diplomatic staff to bring their same-sex spouse to the city. Hong Kong must continue to expand the recognition to allow same-sex spouse to join their partner working in Hong Kong to stay on top of our neighbors in attracting the brightest talents to contribute to our economy.”
The government did not grant the concession because it realised that it was in the wrong, Ho said. “It’s just afraid of the foreign consuls.”
When asked about the concession, People Power lawmaker Ray Chan, who is openly gay, said: “If they grant it to some but not to others, then of course it’s not fair.”
“The SAR government’s policy on the rights of same sex couples has always been – none.” The government did not budge on extending the definition of the word “relative” on the recent Private Columbaria Bill that would allow registered same-sex spouses to pick up their loved one’s ashes, he said.
“If they’re willing to broaden, willing to re-examine this direction… if you’ve already taken this step, shouldn’t you re-examine the entire policy?”
Chan said he intends to raise the question of the diplomatic concession in the Legislative Council.
“I will have to ask the government why there is this concession, will Hong Kong people get this right and if it will be applied in other cases. What about the case of QT? Will you grant the concession to her?”
In 2014, the Hong Kong government raised an objection to a move by the British consulate to allow same-sex weddings for UK nationals to be held on their premises.