There is a problem with the statutory torts of discrimination. Direct differential treatment may not be justified and is ipso facto prohibited. There being no analytical space to extenuate less favourable treatment on account of a protected characteristic, explanations offered by respondents for treatment – in reality justifications – are often squeezed into consideration of … Continue reading Conform to the norm: less favourable treatment and “conventional standards” in Long Hair v CCS on appeal
In this third post on the Lubiano/live-in rule decision, I look at the rationale behind the Director's policy of insisting that entrants to Hong Kong on foreign domestic helper visas live with their employers. I suggest that the policy does not survive scrutiny under orthodox Wednesbury/rationality analysis, regardless of whether fundamental rights precepts are in … Continue reading Lubiano #3 ~ means, ends and orthodox Wednesbury
On Wednesday the Court of Final Appeal handed down judgment in the final round of the QT litigation. It was unlawful for the Director of Immigration to exclude same-sex married or similarly formalised couples from the dependant visa policy, which otherwise permits applications from opposite sex spouses. The decision means that the Director will no … Continue reading From rationality to substantive equality ~ three takeaways from QT in the Court of Final Appeal
The Court of Appeal’s decision in Leung Chun Kwong  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 Societal consensus resurrected? Leung Chun Kwong in the Court of Appeal
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 Lubiano #2 ~ private actors and positive obligations
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,  HKCFA 43, extended to refugee claims in C and Others (2013) 16 HKCFAR 280,  HKCFA … Continue reading Domestic errors of international law: persecution risk and the powerful effect of substantive fairness
The first instance decision in last year’s systemic challenge to the live-in rule is down: Lubiano v Director of Immigration  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 Lubiano #1 ~ can I get a fundamental right?