By Kent O’Neil, Global Legal Analyst, Newland Chase
Last week’s announcement by Hong Kong’s highest court affirming the 2017 lower court decision granting immigration rights to a UK foreign national to accompany her wife on a dependent visa was welcome news to foreign nationals with same-sex partners looking to live and work in Hong Kong. While most western nations have made great strides in recent years toward legal recognition of same-sex marriages and civil partnerships, and companies have made concerted efforts towards greater diversity and inclusion, the Asia-Pacific region lags significantly behind the rest of the world in recognizing same-sex partnerships both for citizens and for foreign nationals residing in the region. Of the 25 countries that currently recognize same-sex marriage, none are in Asia and only New Zealand in the greater APAC region.
So this decision is undoubtedly a victory for LGBT rights of foreign nationals in a key Asia-Pacific destination and a major benefit to businesses recruiting foreign talent to the region. But is it just an anomalous “blip on the radar” or a sign of things to come throughout the region?
In a 2015 report by asset management firm LGBT Capital, it estimated the annual spending power of the LGBT community in Asia to be more than $1 trillion and growing. A published 2014 World Bank commissioned study suggested that India suffers at least a 1.7 percent reduction in its gross domestic output because of its lack of inclusion of LGBT individuals in the workplace. Regardless of cultural and political viewpoint, it’s becoming an economic reality too big for APAC region companies and economic development leaders to ignore.
When first announced in September of last year, the lower court decision in Hong Kong was hailed as a “landmark decision” and a “game-changer” for LGBT foreign nationals working in Hong Kong. The suit was originally filed by a UK national and her same-sex partner when they were denied a dependent “spouse” visa for her to accompany her partner recruited to work in Hong Kong. The couple had a valid civil partnership under UK law. While the working partner was granted a Hong Kong visa, the accompanying partner was denied a visa as a dependent by the Hong Kong Immigration Department. Hong Kong law does not recognize same-sex marriage, and the Department reasoned that the couple could not be “spouses” when both were female.
In 2016, the couple appealed the Immigration Department decision to Hong Kong’s Court of First Instance, which initially denied their appeal. But later a unanimous three-judge panel of the Court of Appeal reversed the lower court and the Department’s decision, ordering her to be issued a dependent visa. In the court’s 68-page opinion, it reasoned that it was a form of discrimination to limit the definition of “spouse” as exclusive to a man and a woman when the couple had a valid civil partnership under UK law.
However, the decision was narrowly drawn to limit its application only to the “privilege” of a dependent visa without officially validating a “right” to same-sex unions in Hong Kong. But after complying with a court-ordered temporary dependent visa for the couple to remain together in Hong Kong, the Immigration Department appealed the decision to the highest court, arguing that the ruling amounted to a “backdoor” recognition of same-sex marriage. Many legal observers expected the decision to be reversed.
On July 4, however, Hong Kong’s highest court made it clear that LGBT foreign nationals with valid civil partnerships and marriages from other countries are entitled to dependent visas to accompany their spouses living and working in Hong Kong. With an increasing number of jurisdictions recognizing, and providing legal process for forming, same-sex marriages and civil partnerships, both the LGBT community and the business community in Hong Kong have lauded the decision. Reportedly, twelve major financial institutions in Hong Kong attempted to file amicus briefs with the court in support of the couple.
Without access to dependent visas, such employees and their companies have in the past often been forced into complicated “work-around” solutions by getting the accompanying spouse employment and an independent visa; but even those work-arounds are not always possible when the spouse’s skill set does not match an available position. Employees who in the past may have been inclined to turn down long-term expat assignments and jobs in Hong Kong because of the inability to obtain a dependent visa for their spouse now have a “green light” to take such assignments. Companies operating in one of the APAC region’s major international business hubs in turn benefit by being able to recruit from a wider foreign talent pool.
However, readers are reminded that the decision in this case remains limited to foreign nationals with valid foreign same-sex marriages and partnerships that are applying for dependent visas in Hong Kong. The decision does not legalize same-sex marriages and partnerships in Hong Kong, nor does it change immigration policy in the rest of mainland China. As a Special Administrative Region, Hong Kong government and law is allowed to operate somewhat autonomously from government and laws throughout the rest of China. Given the differences in law and culture between more liberal Hong Kong and the more conservative mainland, prospective expats should not hold out for a similar policy change in the rest of China anytime soon.
In May 2017, Taiwan’s highest court handed down the land-mark decision which should make Taiwan the APAC region’s first country to officially recognize same-sex marriage by May of 2019. The court essentially ordered the legislature to enact legislation to legalize same-sex marriages within two years or it’s judicial ruling would do so automatically.
However, despite pledges by both the executive branch and the legislature to make it happen, a bill to bring recognition of same-sex marriage into law stalled in the legislative process last year and has yet to be revived. Reportedly, many municipalities are already registering civil partnerships and a backlog of same-sex marriage applications is already piling up with local authorities in anticipation of the legislation.
Immigration authorities have yet to issue dependent visas to same-sex partners in Taiwan, requiring them instead to obtain long-term visitors visas or obtain separate employment-based visas. Presumably, this will change once same-sex marriage is recognized sometime in 2019.
While same-sex marriages remain legally unrecognized nationally in Japan, and foreign nationals are ineligible for dependent visas, same-sex unions are nevertheless becoming more common unofficially. At least seven local municipalities in Japan now recognize “non-legally binding partnerships” of same-sex couples and provide some protections from discrimination. Major companies, like Panasonic, operating in those municipalities are adopting the local anti-discrimination rules into their company HR policies. Not yet enacted, there is even a draft bill in the legislature to provide nationwide workplace anti-discrimination protection for LGBT workers.
Like many countries, the cultural attitudes split along age groups. A recent Pew Research Center survey found that 83 percent of Japanese between ages 18 and 30 believe that homosexuality “should be accepted”, while just 39 percent of those over 50 felt so. Religious institutions are increasingly open to performing wedding ceremonies for young same-sex couples, but most political observers believe official government recognition is still years away.
While outwardly progressive and modern, South Korea still struggles culturally and politically with the issue. Same-sex marriages and civil partnerships have yet to receive legal recognition. Public opinion polls suggest approximately a two to one split between those opposed to same-sex marriage and those favouring recognition, with the advantage to the opposed. Attempts at recognition have been made in the legislature and in the courts, but have thus far been fruitless. Like Korean citizens, foreign spouses of expats living in South Korea have no legally recognized spousal rights – including no rights to a dependent spouse visa.
On the issue of LGBT discrimination, reportedly 85 percent of South Koreans believe LGBT individuals should at least be protected from discrimination. However, legislators receive significant pressure from powerful conservative Christian groups each time attempts are made to codify that sentiment in any meaningful way. Like other APAC countries, the local municipalities in many areas have stepped in with local ordinances to provide some protection.
LGBT individuals are increasingly portrayed favourably in media in South Korea and LGBT pride parades and demonstrations in the major cities draw huge crowds of young people. But like many nations who have struggled with the issue, significant divisions in attitudes between the young and the old remain. Any significant change in law, including immigration law, appears years down the road.
While the government in Singapore continues to drag its feet in bringing laws and policies impacting LGBT citizens and foreign nationals into the growing global mainstream, the country’s culture similarly appears to be ahead of their conservative leaders. A festival in support of LGBT rights held each year in Hong Lim Park garners the support of both residents and major members of the corporate community. In its eighth year in 2016, its corporate sponsorship included Google, Barclays, J.P. Morgan, Goldman Sachs, BP, Bloomberg, Twitter, Apple, and Facebook. The following year, when the Ministry of Foreign Affairs announced a ban on foreign multinationals sponsoring the event, more than 100 local corporations stepped in to fill their shoes for 2017’s event. This year’s festival is scheduled for July 21. However, same-sex foreign spouses of foreign nationals working in Singapore will still need to obtain their own visit passes or independent employment-based visas in order to attend – as the Ministry of Manpower does not issue dependent visas for same-sex partners.
Though discrimination still exists among some segments of the population, many point to Vietnam as a surprisingly tolerant country when it comes to the LGBT community. Significant LGBT communities thrive, especially in urban areas. However, that has yet to translate into any official legal protections for LGBT individuals – whether citizens or foreign residents. Vietnamese immigration laws likewise do not provide immigration routes for same-sex partners of foreign nationals working and residing in the country.
In 2015, the Communist Party in Vietnam abolished a ban on same-sex marriage, but same-sex marriages remain in the somewhat nebulous legal status as tolerated but not legally recognized, as there has been no corresponding legal action recognizing same-sex marriage. While political dissent is still punished severely by the authoritarian government, large pro-LGBT parades frequently take place in Vietnam without state intervention.
With a large and vocal LGBT population and a powerful Catholic Church, the Philippines remains somewhat mired in an American-style quagmire of competing cultural and political agendas; but some recent developments are giving LGBT couples hope. Pew Research Center suggests that the Philippines is perhaps the second-most LGBT friendly country in the APAC region, with as much as 70 percent of the population in support of same-sex marriage. The world’s first and possibly only formally LGBT political party, Ladlad, was formed in the Philippines in 2003 but still struggles to achieve any real political clout. The Philippines’ law remains staunchly traditional when it comes to marriage – remaining the only industrialized country not to even recognize divorce. And that traditionalism carries into the Philippines’ immigration law with no recognized route for same-sex foreign couples.
While he has flip-flopped on the issue and is politically unpredictable, the current President Rodrigo Duterte has as recently as March stated that he supports the legalization of same-sex marriages. Prompting his remarks was the occasion of the Philippines’ Supreme Court accepting consideration of its first-ever petition calling for the legalization of same-sex marriage in what could be the land-mark case for the Philippines.
In June, the court heard the legal arguments for and against the petition but has not yet issued its decision. Legal experts are split as to which way the high court will likely rule, and the Philippines’ Supreme Court is notoriously slow to deliberate, sometimes taking years before handing down its decisions. Some legislators would like to beat the court to the punch and have introduced legislation to grant same-sex couples “all benefits and protections as are granted to spouses in marriage”, but that bill is still pending. Both LGBT citizens and foreign nationals living in the Philippines eagerly await a decision by either the courts or lawmakers.
Final Thoughts on LGBT Expats in the APAC Region
Regardless of ones’ moral, cultural, or political views on the subject, there can be no doubt that the issue of same-sex marriage, and the corresponding immigration rights, has a major impact on the business environment and companies operating in the APAC region. Limitations on same-sex spouses accompanying their partners on work assignments not only has a deleterious impact on careers and family life, but negatively impacts companies’ success by depriving them of the greater labour pool that includes talented LGBT individuals.
While the APAC region may lag behind other regions in its recognition of same-sex marriage among its citizenry and in its immigration policies, there are signs across the region of positive change that will benefit business. Newland Chase continues to monitor the changing legal and business landscape in the APAC region and looks forward to reporting on new opportunities for greater success… for all individuals, all companies, and all nations.
Readers who have specific questions or concerns regarding corporate immigration and business travel to the APAC region beyond this general overview – including options for LGBT couples – are invited to reach out to their Newland Chase immigration specialists or to our APAC regional office in Singapore at email@example.com.
Kent O’Neil is a Global Legal Analyst and frequent writer on international business and global corporate mobility for Newland Chase. Kent received his Juris Doctor from Penn State’s Dickinson School of Law and a Bachelors in Economics from Clarion University. Prior to joining Newland Chase, he worked in both private practice and in-house for a multinational corporation operating across North America, Europe, Asia, and the APAC region. Now based in the U.S., Kent has lived and worked as an expat in Pakistan and the Philippines.
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