Societal consensus resurrected? Leung Chun Kwong in the Court of Appeal

The Court of Appeal’s decision in Leung Chun Kwong [2018] HKCA 318 was handed down on Friday: it was lawful for public bodies to exclude the spouse of a same sex marriage celebrated abroad, from civil service employment benefits afforded to opposite sex married couples in Hong Kong. It was also lawful to prevent the... Continue Reading →


Lubiano #2 ~ private actors and positive obligations

In this second post on the live-in rule decision I look at the substance of Ms Lubiano’s fundamental rights argument: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their employers, the Director unacceptably or significantly increases the risk that they will be subject to fundamental rights abuses, and thus... Continue Reading →

Domestic errors of international law: persecution risk and the powerful effect of substantive fairness

Four recent non-refoulement decisions illustrate how powerful the administrative law obligations of fairness have become in the context of persecution risk. It seems clear that that the “high standards of fairness” doctrine from Prabakar (2004) 7 HKCFAR 187, [2004] HKCFA 43, extended to refugee claims in C and Others  (2013) 16 HKCFAR 280, [2013] HKCFA... Continue Reading →

Lubiano #1 ~ can I get a fundamental right?

The first instance decision in last year’s systemic challenge to the live-in rule is down: Lubiano v Director of Immigration [2018] HKCFI 331. The application covers a lot of law. In these first two posts I address the application's central contention: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their... Continue Reading →

Co-location 1 of 2: premises and text

The administration’s co-location bill [pdf] was gazetted on Friday. Perhaps unsurprisingly, the bill closely tracks the text of the co-operation agreement [pdf] signed by the chief executive and the governor of Guangdong province, subsequently ratified by the NPCSC. The first reading is scheduled for Wednesday.  Structure The bill works in three steps. First, it delineates.... Continue Reading →

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