On Wednesday 4 March 2020, the High Court allowed a judicial review instigated by Nick Infinger over the decision to bar him and his husband from renting a public housing flat. The judge ordered that the couple’s application be remitted for fresh consideration.
The case background
Infinger, who was 25 years old when he filed the legal challenge, had applied for public housing with his husband under the category of “ordinary family” in March 2018, but the Hong Kong Housing Authority (“HKHA”) ruled that they were ineligible as they were not “husband and wife”.
The High Court has declared that the Hong Kong government’s policy of denying legally married same-sex couples the right to apply for public housing is ‘unlawful and unconstitutional’. Hence, it has allowed the judicial review over the HKHA’s decision to deprive Infinger and his husband from being entitled to such benefit.
Mr Justice Anderson Chow recognized that the government was trying to protect traditional families by providing for their housing needs, and that public flats were in scarce supply. But the judge also established that the authority had failed to justify its differential treatment that had “resulted in an unacceptably harsh burden on same-sex couples lawfully married overseas, including the applicant”. Chow deemed the HKHA’s decision quashed and ordered that the application be referred, with priority, for new consideration.
Other same-sex couples in Hong Kong have previously won high-profile court cases against the government, but this case is the first judicial challenge to affect low-income LGBT couples.
The arguments and the final decision
Infinger’s legal team found he had satisfied all criteria for public housing eligibility: he was lawfully married; he and his spouse were permanent Hong Kong residents (over the age of 18); and neither owned any domestic properties or exceeded the limits on income or assets. The legal argument was particularly focused on the fact that the existing precedent amounted to “direct and deliberate” exclusion of same-sex couples from housing benefits.
However, the bid was rejected on 7 September 2018. The authority referred to the Oxford English Dictionary’s meaning of the word ‘husband’ and stated that he was not eligible due to the fact that the relationship between the applicant and other family members must be either husband and wife, parent and child or grandparent and grandchild. This left Infinger only eligible for non-elderly one-person flats.
Representing the HKHA, Abraham Chan said the government was allowed to deny public housing to same-sex couples because of the scarce availability of such flats in the territory to provide for every low-income resident in the territory. The authority found no valid data to back the conclusion that granting this right to the LGBT community would affect the overall availability of public housing.
Chow concluded that the policy was discriminatory. In doing so, cited The Court of Final Appeal’s previous rulings regarding the issue of discrimination based on sexual orientation (QT v Director of Immigration (2018) 21 HKCFAR 324 and Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127).
He also dismissed the HKHA’s argument that the “protection of the family in the traditional sense” is a “weighty and legitimate reason” for a difference in treatment. He acknowledged that The Court of Final Appeal accepted that the protection of the traditional family constituted by heterosexual marriage was a legitimate aim but held that providing financial spousal benefits to opposite-sex married couples only was not rationally connected to that legitimate aim. In his dismissal, Chow also referred to a statement made by the European Court of Human Rights in Kozak v Poland (2010) 51 EHRR 16. That case concerned discrimination based on sexual orientation in the context of the right to succeed to a municipality flat, which had previously been rented to the deceased partner of the applicant.
Moreover, he stressed that the government has the ability to formulate policies in respect of the social welfare system, but it cannot seriously be argued that the Basic Law and the Bill of Rights authorize the government to pursue an unlawful or discriminatory policy. In fact, both the Basic Law Chapter III Art. 25 and the Bill of Rights Ordinance, Cap. 383 Art. 22 guarantee equality for all residents and promote protections from discrimination.
In allowing the application for judicial review with the Court, the following was granted:
- a declaration that the Spousal Policy of the Housing Authority to exclude same-sex couples who have entered into lawful and monogamous marriages overseas from eligibility to apply for Public Rental Housing as Ordinary Families under the General Application category is unlawful and unconstitutional for being in violation of BL 25 and BOR 22; and
- an order of certiorari to bring up the Eligibility Decision and Registration Decision to the High Court and quash those decisions.
Finally, the Public Renting Housing Application has been remitted to the HKHA for fresh consideration in accordance with this judgment and with its restored priority to the date on which the application was originally made (9 March 2018).
Public reactions to the ruling
The HKHA has yet to formally announce if it plans to appeal, but it potentially could do so. In fact, a few prominent pro-government lawmakers have called on the government to lodge an appeal, believing the case threatens current policy around marriage which is strictly defined as between a man and a woman.
Holden Chow, a lawmaker from the pro-Beijing Democratic Alliance for the Betterment and Progress of Hong Kong denounced the ruling. He claimed that he has received feedback from different people and groups against LGBT rights, expressing their “grave concern” over the ruling. “There is a perception and a fear within the public that the decision handed down by the Court today would acknowledge same-sex marriage in Hong Kong” he said. Business and Professionals Alliance for Hong Kong lawmaker Priscilla Leung, also commented and voiced her criticism by saying “we need a public discussion – not the Court – to decide on our marriage system.”
Despite the possibility of an appeal clouding the judgement, activists in support of equality and LGBT rights have described the court case as another big step forward on the path to marriage equality.
In a news release, Man Kei Tam – Director of Amnesty International in Hong Kong – said, “This ruling is a triumph for equality and LGBT rights, and a significant step forward in the fight against discrimination at the highest levels of Hong Kong society.” He added, “The Hong Kong government’s refusal to provide public housing to two married men based purely on their sexual orientation is a despicable affront to their human rights. No one should face discrimination because of who they are or who they love. After the High Court’s welcome intervention, the authorities must ensure housing applications from same-sex couples are treated exactly the same as everyone else’s. Today must be a wake-up call to the Hong Kong government, which must urgently review all its laws and policies to ensure no one else faces discrimination based on their sexual orientation, gender identity or intersex status.”
Hong Kong lawmaker Ray Chan said that the ruling was a big victory for the LGBT community: “The legal victory should be viewed in the context of other rulings in favour of LGBT rights in Hong Kong in recent years such as employee benefits, dependent visas, and filing joint tax returns.” Chan advised the HKHA not to appeal against the decision and said they had a high chance of losing the case. “Progress was made one step at a time… [and] every judicial victory comes at a high cost in terms of legal fees, time, and stress for the plaintiffs,” Chan added. He also called on the government to initiate a public consultation on same-sex marriage legislation as the current marriage system created hurdles for many: “It is time to announce that same-sex couples can enter into legally-recognized civil unions in Hong Kong.”
Considering the legal developments experienced in Hong Kong in the past two years, no improvement has been made in the territory for guaranteeing rights to same-sex couples through the implementation of specific legislation. The right of access to the public housing system is one of the many rights that same-sex couples should be entitled to in the same manner as heterosexual couples are. It relates to the fundamental need of accommodation and this is a particularly pressing need in Hong Kong where housing prices are extremely high. This is just one of many rights that heterosexual relationships can enjoy but same-sex relationships cannot. Child and family wealth are not accounted for in legislation when it comes to same-sex marriages, these couples cannot rely on the judicial system to resolve any disputes among themselves. Given the current lack of legislation in this area, we hope it does not take an estranged same-sex couple to challenge the laws on divorce for same-sex marriage to be recognised.
It was only through the actions of some brave individuals who challenged the government in court that some progress has been made. Leung and QT cases – together with a handful of other cases – show that on the issue of same-sex and minority rights, where the legislature fears to tread, the Courts (especially the Court of Final Appeal), are fully prepared to uphold the core human right of freedom from discrimination. Hong Kong legislation now needs to follow suit.
Our team at Hugill & Ip has extensive experience in dealing with Family and LGBT Rights issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.