CHEN YIYI a minor, by her next friend and father, CHEN HAIMENG AND OTHERS v. SECRETARY FOR EDUCATION

HCAL 2434/2025

[2026] HKCFI 2044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2434 OF 2025

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J U D G M E N T

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A.  Introduction

1.  It is not inappropriate to recognise that there is certainly room for people to think that (1) a student studying in Hong Kong should be eligible for subsidised university fees only if that student has a genuine sufficiently close or long connection with Hong Kong, and (2) dependant visas are issued to dependants of other persons so as to permit, and on the understanding that, the dependants will come and live in Hong Kong with the persons upon whom they are said to be dependant.

2.  Though neither point is determinative, and at least the first one is not even really controversial, this case engages both points.

3.  The 87 Applicants are children (1) who hold dependant visas on the strength of their parents’ visas issued under various Migration Schemes, (2) but who study in Mainland schools under international academic curricula, (3) who are due to finish secondary education in 2027, and (4) who intend to apply in late 2026 for tertiary education courses in Hong Kong commencing in the 2027/28 academic year (“AY”).

4.  On 31 July 2025, the Government announced the decision of the Respondent – the Secretary for Education (“Secretary”) – to revise the eligibility criteria for Government-subsidised post-secondary student places and subsidies (“Policy”). The essential change made by the Policy was to require holders of dependant visas issued to students when they were under the age of 18 to have resided in Hong Kong for two years to qualify for Government Subsidised Places and Fees from the 2028/29 AY onwards, whilst introducing a one-year transitional arrangement (“One Year Rule”) which reduced the residence requirement to one year for students commencing university in the 2027/28 AY.

5.  In short, the Policy imposed a new residency requirement for young people holding dependant visas to qualify as “local students” for the purpose of subsidised university fees. But the One Year Rule created a transitional provision applicable only to the 2027/28 AY, when dependant visa holders would be eligible for subsidised university fees if they had resided in Hong Kong for one year prior to the start of their course.

6.  The Applicants suggest that the announcement of the Policy threw their existing plans into disarray. By the date of the announcement of the Policy on 31 July 2025, the Applicants were due to commence their final two years of school in the Mainland in just a matter of weeks. They had school places secured to study for their final two years of secondary school in 2025/26 AY and 2026/27 AY, and it is said that they would inevitably have had in place arrangements for accommodation, extracurricular activities, and so forth. However, with those arrangements, the Applicants would not meet the new residency requirement when they finish secondary school in 2027.

7.  Therefore, they say they would have had either (1) to change immediately to a Hong Kong school to study for the two-year pre-university entrance exams, if a place could be found, or (2) to study the first year at a Mainland school before changing to a new school in Hong Kong for the final year, again assuming a place could be found.

8.  However, it may be relevant not to lose sight of another alternative, namely simply to keep their existing arrangements and face the consequences of university fees at a level reflecting their lack of sufficiently close or long connection with Hong Kong.

9.  In any event, despite manifold hurried enquiries, the Applicants’ parents discovered that almost no places were available for international academic curricula – i.e. A-Levels, International Baccalaureate Diploma Programme, Australian Higher School Certificate and Advanced Placement – for the 2025/26 AY (so as to start the final two years of secondary school). It was also discovered that transfers for the final year only, i.e. the 2026/2027 AY, were also not available, feasible or practicable.

10.  Whilst the Secretary does not agree as to either difficulty, it seems to me the case can proceed on the understanding that there would inevitably have been some such practical difficulties. I acknowledge that only 4 of the 87 Applicants have filed evidence in the case, so the evidence can be said to be incomplete. But I do not think I need to determine any factual dispute in this regard.

11.  Hence, in these proceedings, the Applicants make a judicial review challenge to the One Year Rule. But it is important to note at the outset that the Applicants do not make any challenge to the Policy as a whole, or as to its main thrust and purpose.

12.  The judicial review challenge is brought on two independent grounds, namely that (1) the One Year Rule is irrational, and (2) it is discriminatory against the Applicants.

13.  I granted leave to apply for judicial review on the papers, and I gave directions to bring the matter to a substantive hearing. At that hearing, the Applicants were represented by Mr Tim Parker SC, leading Mr Zenith Chan, and the Secretary was represented by Mr Johnny Ma SC, leading Ms Rosa Lee.

14.  At the end of the hearing, I reserved my decision to be handed down in due course.

15.  This is my Judgment.

B.  Background

16.  Prior to 31 July 2025, dependant visa holders who were below 18 years of age when first issued their visa (“Dependant Children”) were treated as “local students” for the purposes of university admissions and fees (“Previous Policy”).

17.  This included dependant children of persons entering Hong Kong under the Migration Schemes (which include the Quality Migrant Admission Scheme (“QMAS”) and the Top Talent Pass Scheme (“TTPS”), Employment Visas, Immigration Arrangements for Non-local Graduates, the Admission Scheme for Mainland Talents and Professionals (Technical Professionals Stream), and Entry for Employment in Hong Kong under Technology Talent Admission Scheme.

18.  It is settled that at least part of the purpose of the dependant visa policy is to ensure that Hong Kong will continue to attract people with the right talent and skills to come to Hong Kong, by giving them the choice of bringing in their dependants to live with them in Hong Kong. Nevertheless, it is important not to lose sight of the existence of that “choice”. It is up to an individual person coming to Hong Kong to decide whether or not to bring their dependants to live with them in Hong Kong.

19.  It can readily be accepted that the possibility of bringing dependants to live with them in Hong Kong may be part of the attraction to the talents themselves. However, there is no evidence in this case speaking directly to what talents would or would not do in the face of any particular policy of the sort relevant to these proceedings. Indeed, a decision to move to live and work in Hong Kong is likely to be multi-factorial, with very varying weight given to the factors by different individuals or families depending on their own circumstances.

20.  The Applicants are Dependant Children – because they are dependant visa holders who were below 18 years of age when first issued their visas as dependants of their parents who are in Hong Kong under various Migration Schemes.

21.  As stated, each of the Applicants (1) had enrolled in secondary or high schools outside Hong Kong, studying international curricula for their final two years of secondary school in 2025/26 AY and 2026/27 AY, and (2) wishes to apply to tertiary institutions in Hong Kong starting from September 2026 with a view to starting university here in the 2027/28 AY. As the Applicants have stressed, by the date when the Policy was announced on 31 July 2025, the Applicants were anticipating starting term at schools in the Mainland within just a few weeks.

22.  However, it might be said that, with those particular characteristics, and despite the fact that dependant visas have been obtained for them, it is at least questionable whether the Applicants’ parents have actually made the choice to bring those dependants to live with them in Hong Kong.

23.  Being classified as a “local student” can make a substantial difference to the fees payable. As an example, for a standard 4-year undergraduate program in a STEM subject, tuition fees for a place at the University of Hong Kong for the 2026/27 AY would cost: (1) with a subsidised place, HK$188,000 (HK$47,000 per year); but (2) with a non-subsidised place: HK$996,000 (HK$249,000 per year).

24.  The difference in fees may not be insignificant, perhaps even for middle-class families.

25.  However, it can be noted that, depending on the timing of residence and visa status of the student, it may not be all four years that would result in non-subsidised fees. More likely, eligibility for subsidised fees would be achieved for at least the third and fourth year of university study. This may be relevant to, and I shall keep it in mind when, assessing the significance and duration of any impact in the change of policy.

C.  Public Funding for Higher Education in Hong Kong

26.  Education is a major item of public expenditure in Hong Kong. A substantial portion of the Government’s recurrent education expenditure supports the post-secondary sector, in particular the eight universities funded through the University Grants Committee (“UGC”). The recurrent funding framework supports, amongst other things, subsidised places offered through the programmes of the UGC-funded universities. Within the overall funding framework, and against a low cost recovery rate (meaning that the Government bears most of the funding needs, rather than students), the importance of prudent stewardship of resources can be well understood.

27.  Within the framework, the Government funds a range of UGC-funded places – including, materially, subsidised first-year first-degree intake places (“Subsidised FYFD Places”). Those places form a subset of UGC-funded places, which in turn form part of the broader category of subsidised places.

28.  In the evidence filed for these proceedings, the Government has given the reasons for restricting the eligibility for the Subsidised FYFD Places to “local students” as follows:

(1)  Subsidised places constitute a finite resource funded substantially from general revenue and subject to numerical caps, meaning the admission of one student to a subsidised place inevitably reduces the availability of such places for others within the same cohort.

(2)  Against that specific context, eligibility restrictions are considered necessary because:

(a)  They serve to direct the subsidies towards persons with a genuine, sufficiently closed and established affiliation to Hong Kong – being the community that funds the subsidies – and to prioritise, as a matter of fairness and stewardship, the allocation of limited publicly funded places among competing demands.

(b)  They also further align with the Government’s established policy objective of investing public resources in the development of Hong Kong’s local human capital and workforce. Local students, as a class, generally exhibit greater likelihood of residing, working and contributing in Hong Kong post-graduation, thereby ensuring community benefiting from their investment in subsidised post-secondary education.

29.  According to information obtained from the Immigration Department, in 2023 and 2024 a substantial number of 223,347 dependant applications were approved. Amongst the approved applications, around 128,000 were unmarried Dependant Children under the age of 18 at the time of application. The breakdown of applications by region suggests diversity amongst them, namely that they originate from a wide range of jurisdictions and educational pathways, which in turn may partly explain the variety of secondary curricula they may be pursuing.

30.  However, it seems that not all dependants whose applications are approved actually come to Hong Kong and activate their dependant visas. This is telling. Again according to ImmD, in 2023 and 2024, only a total of about 170,000 dependants of the talent scheme entrants have come to Hong Kong to activate their dependant visas, including nearly 100,000 Dependant Children. It was estimated by Government that around 6,000 of them would have reached the age of 18, and hence be due for normal university admission by the 2027/28 AY.

D.  Consideration of Policy Change

31.  In 2024, there was a media report about the growing numbers of students from the Mainland taking the HKDSE as private candidates, then taking up subsidised tertiary education places in Hong Kong as “local students”. The number of HKDSE private candidates allegedly surged by 2300% from 2021/2 to 2024/5, and the number of successful offers for such candidates rose by 3,300%. Private candidates now allegedly outnumber local, school-based candidates.

32.  LegCo received a complaint letter in mid-October 2024, and 94 further complaints from the public between October 2024 and July 2025, all expressing concern that under the Previous Policy, students who were not ordinarily resident in Hong Kong were taking up subsidised university places. These complaints highlighted a risk of abuse of the Migration Schemes for educational benefits, increased competition for subsidised places to the detriment of ‘genuine’ local students, and queried the fair and targeted use of public funds.

33.  In March 2025, the Government informed the public about its current review of the existing arrangements concerning eligibility for publicly subsidised post-secondary education, in reply to a question raised by LegCo. Materially, the reply included the following (bold emphasis added):

At present, the tuition fee level for local students of UGC-funded undergraduate programmes is a flat rate of $42,100 per annum. All non-local students enrolled in UGC-funded programmes are not publicly funded and the universities are required to charge tuition fees at least sufficient to recover all additional direct costs. In accordance with the above principle, universities may determine the appropriate level of tuition fees for non-local students, having regard to their own circumstances and programme costs, and taking into account various factors. At present, the government has no plan to change the relevant principles and arrangements. However, for dependant visa holders with residence requirements, we will consider making reference to the practice of other countries/regions and review the conditions and requirements for subsidising tuition fees for local students on undergraduate programs, e.g. considering requiring the visa holders to have ordinarily resided in Hong Kong for a certain period of time prior to admission before they become eligible for a tuition fee subsidy for local students, so as to ensure the effective use of public funds.

The review of the definition of “local students” is now well underway.  We have met with different stakeholders and listened to their views. At the same time, we have made reference to the policies of the United Kingdom and Singapore, and been in close contact with other policy bureaux and departments. We are consolidating comments from various parties, conducting in-depth examination and carefully assessing the feasibility of different options and their implementation details, having regard to the impact on the attractiveness of various talent admission schemes, tertiary institutions’ arrangements for student admission, and entry restrictions for overseas persons. At the same time, in order to minimise the impact of the new measures on the children of talents, we will actively consider putting in place transitional arrangements.  The Education Bureau (EDB) will announce the latest arrangements as soon as possible after considering various options.

34.  However, I do not think it can be said that reply really gave significant earlier notice of the coming policy change, though it highlighted that a review was underway. It may be fair to say that the indication was the possible imposition of a necessary period of ordinary residence before eligibility for subsidised fees. But, certainly, the reply did not identify any particular likely timing – and it was emphasised (and the Applicants place significant reliance on the statement) that transitional arrangements would be actively considered to seek to minimise the impact of the new measures on the children of talents, i.e. Dependant Children.

35.  As these proceedings approached the hearing, and during the argument, some focus was placed upon the actual considerations engaged in by the Government internally.

36.  In correspondence, the Applicants’ solicitors pointed to what they described as a troubling lack of disclosure of contemporaneous documents in the case in connection with formulation of the Policy as described in the affirmation evidence. Reference was made to the Government’s duty of candour, and to the fact that any summary, however conscientiously and skilfully made, may distort – so that, therefore, it is ordinarily best that a document itself is produced as best evidence of what it says.

37.  This essentially arose from the evidence filed for the Government, and in particular that found in §§85 and 86 of the affirmation of Ji Sang, Principal Assistant Secretary (Higher Education) of the EDB. Those paragraphs stated:

85.  With reference to the aforesaid research findings and various internal and external stakeholders’ input, the Government also explored the feasibility of various solutions, apart from imposing a residence requirement on the Dependant Children, to address the pressing public concerns identified under Part B1(b) [of the affirmation]. These possible solutions included (i) requiring the universities to prioritise applicants based on their prior duration of stay in Hong Kong for admissions and/or revising the eligibility criteria to be based solely on an individual’s length of residence in Hong Kong; and (ii) confining the application of the Policy to only Dependant Children studying the HKDSE Curriculum. However, none of these possible solutions was considered feasible:

(1)  Using the student’s residence in Hong Kong – an attribute which is not, of itself, indicative of academic merit – as the sole eligibility criterion, or requiring universities to accord priority by reference to duration of residence, was considered inconsistent with the universities’ long-standing merit-based admissions policies.

(2)  Differentiating the Dependant Children by reference to the curriculum they are studying, for the purpose of determining their eligibility for Govt Subsidised Places & Fees, could not adequately address the public concerns and grievances as summarized under Part B1(b) above. Such eligibility should turn not on the particular academic programme pursued at the secondary level, but on the individual’s local affiliation with Hong Kong. A curriculum-based differential treatment therefore fails to tackle the root of the problem faced by the Government.

86.  Pausing here, I wish to add that the Government has taken the initiative to further review the Policy as well the One Year Rule, and explored the viability of (i) setting the transitional arrangement to a duration of less than one year and (ii) imposing no residency requirement for the 2027/28 AY at all. However, neither of the options is considered viable for the reasons below.

(1)  Secondary curricula (whether HKDSE or non-local) are structured by reference to academic years. Given that admissions and eligibility processes associated with secondary-to-tertiary progression are likewise planned and administered on an academic-year cycle, the transitional arrangement for the One Year Rule was considered against a full academic-year reference period. A transitional arrangement framed by reference to a full academic year was considered to provide a clearer and more administrable basis for consistent implementation. Accordingly, any transitional arrangement of less than one academic year (for example, a partial-year requirement) is considered hardly feasible, because a shorter period would (a) sit awkwardly with the annual admissions timetable and cut-off dates, and (b) require the Government and any institutions concerned to determine and/or verify residence status within fractions of an academic year, thereby increasing borderline cases and possibility of inconsistent outcomes.

(2)  Imposing no residency requirement for 2027/28 AY is not preferrable due to the urgent need to implement change sooner rather than later to address the unfairness and public recourses allocation problem mentioned in Part B1(b) above in a timely manner. Indeed, as I will explain under Part B3(a) below, the Government had initially intended to have the Revised Eligibility Criteria (defined below) taken effect from 2026/27 AY onwards – though this was considered infeasible in the course of deliberation.

38.  The difference in tense between the two paragraphs – §85 “was”, and §86 “is” – has been explained again by the Government in correspondence.

39.  It was said that §85 refers to the Government’s then consideration of solutions other than imposing a residence requirement, and was concerned with the formulation of the Policy rather than the One Year Rule. The Government’s internal considerations and deliberations concerning those matters were reflected in, and evidenced by a comparison between, the draft version and the finalised version of one particular contemporaneous internal policy paper (“Draft Paper” and “Finalised Paper” respectively) – which have since been provided (see below). The explanation included that the considerations stated in §85 were mentioned in the Draft Paper, but later removed from the Finalised Paper, as the alternatives were considered infeasible and hence need not be included in the finalised version.

40.  As to §86, it was recognised that no relevant contemporaneous documents existed at the time of the formulation of the Policy and the One Year Rule. The specific matters in that paragraph referred to deliberations arising from the Government’s further review of the Policy and the One Year Rule, which took place after the commencement of the judicial review proceedings and involve communications in light of the proceedings.

41.  The Part B3(a) referenced in §86 included §§101-103 of the affirmation, which stated:

101.  Nonetheless, with the work schedule at the material time, the Government could only announce the Revised Eligibility Criteria the earliest in late July 2025, implying that it would be impossible for the affected students to satisfy the Revised Eligibility Criteria, and the affected institutions would be given only around three months to revise the prevailing application policies and procedures. Upon careful deliberation, in particular given that the Residence Requirement mandated two years of residence, the Government considered implementation from 2026/27 AY onwards infeasible. For these reasons, the Government made the difficult decision to postpone implementation by one year, i.e. from 2027/28 AY onwards.

102.  However, if the Revised Eligibility Criteria took full effect starting from the 2027/28 AY, this would require the affected students to reside in Hong Kong from September 2025 onwards to satisfy the Revised Eligibility Criteria. Noting that the Government’s proposed announcement date of the said Criteria should fall on late July 2025, and that the affected students would begin their penultimate year of studies in September 2025, they would be left with less than two months to adjust their plans. After some serious consideration, the Government found such period too short for any meaningful adjustments to be made.

103.  Balancing the urgency involved against the possible impact on Dependant Children, the Government carefully struck a middle-ground concession, i.e. the One Year Rule which shortened the Residence Requirement to one year for Dependant Children seeking university admission in the 2027/28 AY, with the Residence Requirement taking full effect from the 2028/29 AY onwards (i.e. the Policy).

42.  Reference can also be made to §118 of the affirmation, where the deponent offered some conclusions, including as to the correct approach to the underlying aim of the Policy. Keeping in mind Mr Parker’s description of the paragraph as containing a “further retrospective gloss” on the words, that paragraph stated (emphasis in original):

118.  One should therefore read the statement in the Press Release “the [Policy] is not expected to have a significant impact on families with genuine intentions to come to Hong Kong for development” (with our emphasis added) against the foregoing context. The real meaning of this statement shall be distilled as follows.

(1)  Acknowledgement of unavoidable impacts: The Government expressly acknowledges the potential negative impact brought by the Policy and the One Year Rule. However, such acknowledgement shall be distinguished from and should not be regarded as a guarantee that no affected person would experience any adverse consequence (see §§111-112).

(2)  Facilitated transition and mitigation of disruption for HKDSE students: For Dependant Children studying the HKDSE Curriculum, transition into Hong Kong would not generally present the same constraints as now alleged by the Applicants. In particular, the EPAS facilitates their transfer to public sector secondary schools, thereby mitigating the potential disruption to their studies. It is thus unlikely they would experience material detriment as a result (see §§113-115).

(3)  Impact on students studying non-local curricula – no guarantee of preserving preferred arrangements; switching to HKDSE is possible in principle; remaining impact largely financial:

(a)  Insofar as Dependant Children pursuing non-local curricula like the Applicants are concerned, the Government did not proceed on the basis that it could guarantee preservation of any particular non-local schooling or curriculum arrangements (see §109). Indeed, for the reasons explained in §109 above, it is not practicable for the public education system to cater for all non-local curricula or examination pathways pursued by Dependant Children of diverse backgrounds.

(b)  On the other hand, the Dependant Children remain free to transition to the HKDSE Curriculum offered by public sector secondary schools with ample vacancies. It would however be up to an individual child to decide whether to opt for such transition and if so when.

(c)  At the same time, as explained at §§116-117, the Government recognized that some families may, having regard to their individual circumstances and preferences (including a preference to maintain a non-local curriculum), consciously elect not to meet the Residence Requirement. In that case, the EDB expects that the only practical consequence is, in essence, confined to exposure to the Difference in Fees only.

(d)  Viewed in above light, the Government did not consider the resulting impact to be “significant” – this was particularly so for students seeking to maintain their pursuit of non-local curricula, who appeared to the Government more likely to hail from resourceful backgrounds.

43.  The last point was footnoted as follows:

Families in this position are likely to hail from resourceful backgrounds because maintaining a non-local curriculum in Hong Kong typically entails pursuing fee-charging schooling options (such as DSS secondary schools or private schools) that levy substantial tuition fees and involve related education costs. A family willing and able to pursue such options, particularly at a late stage of secondary education, would generally be expected to have greater financial capacity than an average household. It was on this basis that the Government considered that students in the position of the Applicants are likely to come from relatively better-resourced families.

44.  As to the Draft Paper (and the Finalised Paper), I think it is fair to say that its focus – at least as is material for present purposes – is on secondary students studying for the HKDSE examination on the Mainland, then taking the HKDSE examination as private candidates, with an intention of securing admission to UGC-funded undergraduate programs. There is no express reference to students on the Mainland studying international curricula, though it may be that reference to ‘Type V’ students (i.e. dependant visa/entry permit holders who are below 18 years old when first issued with such visa/entry permit by ImmD) necessarily includes all such persons, irrespective of their location and curriculum of study.

45.  As to the comparison between the Draft Paper and the Finalised Paper, I note the following. In the Draft Paper, under the heading ‘Alternatives Considered’, one alternative was to revise the definition of “local students” and “non-local students”. However, that proposal was thought to focus on a binary distinction, which may not only run the risk of dampening the attractiveness of various talent schemes, but stir up unnecessary confrontation. The other alternative was to review the admission arrangement to UGC-funded undergraduate programmes. The first of the two possible measures considered in that regard was identified at §39(a) of the draft – in a way which again seemed to focus on HKDSE students – as follows:

(a)  to revise the JUPAS [Joint University Programs Admissions System] eligibility such that local students with a valid DSE result may apply via JUPAS only if they have resided in Hong Kong for two years. If the residence requirement is not met, the student will have to apply via the non-JUPAS route;

46.  The Draft Paper recognised that the proposal would maintain the existing definitions of “local student” and “non-local student” as well as the eligibility for government-subsidised university student places. But, at §41, it was thought that the measure:

[would] not effectively address the public’s concern about the unfairness of allocating a UGC-funded undergraduate place (particularly in one of the more popular and prestigious programs) to students belonging to Type V who do not really live and study in Hong Kong. The main reason is that JUPAS is merely a mechanism to handle applications for full-time undergraduate programmes from local students with valid HKDSE examination results. A student’s eligibility for government-subsidised university place is currently premised on whether he/she is a local student under the current definition, not on his/her JUPAS eligibility.

47.  I think particular note can be given to the phrase “students belonging to Type V who do not really live and study in Hong Kong”. That seems to me to be a fair description of the Applicants. I see the strong force in the argument that that description does not turn on what curriculum is being studied by such a student.

48.  As I understand it, JUPAS is mainly designed for local students taking or who have taken the HKDSE. Therefore, §41 of the Draft Paper may seem to be considering and addressing a concern relating to HKDSE students (and not those studying other, international curricula). However, the Government’s stance remains that the Policy is intended to apply wider than to just HKDSE students, namely to the whole of the category of persons falling within Type V, i.e. Dependant Children.

49.  As to the implications of the proposal, §46 of the Draft Paper stated, amongst other things, that:

As for students from Type V, we envisage that they will plan ahead and come to Hong Kong well in advance before applying for government-subsidised university student place so as to fulfil the new residence requirement. The revised eligibility criteria will not have significant impact on the total number of Type V applicants. Therefore, we consider the proposal not having significant financial implications.

50.  Finally, §51 of the Draft Paper stated, with parts redacted:

While we recommend imposing a residence requirement for Type V holders for them to be eligible for Government-subsidised university places, we do not envisage a significant impact on these visa holders and their families. The new arrangement may facilitate these visa holders and their families to plan ahead in case they wish to pursue post-secondary education in Hong Kong, having regard to the new residence requirement and their own circumstances. [redacted] we do not see that the current proposal will have any significant impact on the administration of various talent schemes through which Mainland talents may come to Hong Kong to work and explore business opportunities. [redacted].

51.  In the Finalised Paper at §21, it was recognised that the recommended residency requirement might be anticipated to be a concern mainly for Type V visa holders. However the paragraph went on to say that they and their families will be provided with sufficient time to make necessary preparations whilst allowing an avenue for their admission by universities on a self-financing basis, having regard to individual merits and other relevant considerations.

52.  The Finalised Paper at §25 stated that, assuming an announcement in August 2025, it would be prudent to adopt the revised eligibility criteria in the application cycle commencing in October 2026 (for the 2027/28 AY) and thereafter, with the transitional arrangements for Type V visa holders that the minimum years of residency immediately preceding the first day of their respective programme should be (1) one year for the 2027/28 AY, and (2) two years for 2028/29 AY and beyond. This is obviously a reference to what became the One Year Rule. It was then stated that:

This would allow the affected persons a reasonable time to make their own planning and the JUPAS Office and the admissions offices of the UGC-funded university sufficient time to update their computer systems and procedures.

53.  Under the heading ‘Implications of the Proposal’, §40 of the Finalised Paper contained a similar statement regarding Type V students (i.e. Dependant Children) as was set out in §51 of the Draft Paper (see above).

E.  The Policy

54.  Ultimately, in response to the concerns expressed, the Government announced a change to the Previous Policy, by way of a press announcement made on 31 July 2025, i.e. the Policy.

55.  Under the heading ‘Government revises eligibility criteria for government-subsidised post-secondary student places and subsidies’, the terms of the announcement were as follows (with emphasis added in bold to show the key phrases to which attention has been drawn for the purposes of the present proceedings):

The Government today (July 31) announced the revision of the eligibility criteria for government-subsidised post-secondary student places and subsidies: introducing two categories of tuition fees and revising the eligibility criteria. The revision will apply to the 2027/28 academic year and thereafter (the application cycle for the 2027/28 academic year commencing in October 2026). This will allow the affected persons reasonable time to make their own plans and the Joint University Programmes Admissions System (JUPAS) Office and the admissions offices of various institutions (including the University Grants Committee (UGC)-funded universities, the Hong Kong Academy for Performing Arts, and the Vocational Training Council) sufficient time to make corresponding administrative arrangements.

A Government spokesperson said, “Under the current admissions arrangements, dependant visa/entry permit holders who were below 18 years old when first issued with such visa/entry permit by the Immigration Department (ImmD) are considered local students. There has been recent concern that some of these students did not come to reside in Hong Kong but applied for government-subsidised student places at UGC-funded universities as local students, which affected opportunities for university admission and the targeted use of public funds.

“To clarify the eligibility criteria for government-subsidised post-secondary student places and subsidies, and to ensure the proper use of public funds, the Education Bureau, having regard to overseas practices and the practical situation in Hong Kong, considers it necessary for dependant children to reside in Hong Kong for two years before becoming eligible for government-subsidised post-secondary student places. Holders of a full-time employment visa/work permit or a visa/entry permit for various admission schemes will no longer be eligible for government-subsidised post-secondary student places.”

Two categories of tuition fees are introduced under the revision. Category I refers to subsidised fees. Persons holding the following documents are eligible for government-subsidised student places in relation to sub-degree, undergraduate and taught postgraduate programmes:

•  A Hong Kong permanent identity card, other documents issued by the ImmD showing the right to land/right of abode in Hong Kong, and a visa label for unconditional stay;

•  A One-way Permit for entry to Hong Kong; and

•  A dependant visa/entry permit: holders who were below 18 years old when first issued with such visa/entry permit by the ImmD, provided that they have resided in Hong Kong for two years immediately preceding the first day of their respective programmes. Regarding first-year student places, to facilitate institutions’ admissions procedures, the two-year period will be specified appropriately by the JUPAS office or the institutions concerned having regard to the first day of the respective programmes. Whether the residency requirement is met is determined at or before the start of each academic year and shall remain the same for the remainder of that academic year. The first day of the academic year of a programme is determined by the programme’s start day.

Category II refers to non-subsidised fees and applies to persons not meeting the eligibility criteria in the above-mentioned Category I. These persons include:

•  Dependant visa/entry permit holders who were below 18 years old when first issued with such visa/entry permit by the ImmD, and they do not meet the two-year residency requirement;

•  Holders of a full-time employment visa/work permit;

•  Holders of a visa/entry permit for various admission schemes (including the Quality Migrant Admission Scheme, the Capital Investment Entrant Scheme or the Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents); and

•  Non-local students (such as holders of a student visa/entry permit; holders of a visa/entry permit under the Immigration Arrangements for Non-local Graduates; dependant visa/entry permit holders who were 18 years old or above when first issued with such visa/entry permit by the ImmD).

Category II persons may still apply for government-subsidised sub-degree, undergraduate and taught postgraduate programmes but have to pay non-subsidised fees. The institutions may determine appropriate non-subsidised fee levels, following the established principles, having regard to their own circumstances and programme costs, and taking a holistic view of various factors. The levels have to be at least sufficient to recover all additional direct costs, and to be on par with those applicable to non-local students.

The Government will put in place a transitional arrangement for the above-mentioned revision, whereby the residency requirement for the 2027/28 academic year (its application cycle commencing in October 2026) will be set at one year.  The two-year residency requirement will be implemented starting from the 2028/29 academic year.

The spokesperson said, “When formulating the revision, the Government fully listened to various views in society and struck the right balance. The revision is not expected to have a significant impact on families with genuine intentions to come to Hong Kong for development.”

Regarding the residency requirement for JUPAS applications for government-subsidised first-year-first-degree student places, applicants are required to provide the following proof:

(a)  proof from the applicant that he or she is enrolled as a full-time student in a school offering a formal curriculum in Hong Kong for the two-year period ending on May 31 in the year in which his or her respective programme begins; or

(b)  for those who cannot provide the proof in (a) above, a statement of travel records of the applicant which can be obtained at a fee from the ImmD covering the two-year period to demonstrate that the applicant is not absent from Hong Kong for a maximum of 90 days in each year of the two-year period.

Regarding other government-subsidised post-secondary student places, including those in relation to sub-degree, senior year undergraduate and taught postgraduate programmes of UGC-funded universities, the relevant institutions are required to process the applications in an approach similar to the above-mentioned one.

The eligibility criteria and related arrangements for government scholarship, fellowship or subsidy schemes which are currently premised on the definitions of “local students” and “non-local students” (such as the Hong Kong Future Talents Scholarship Scheme for Advanced Studies, the Tuition Waiver for Local Research Postgraduate Students, the Study Subsidy Scheme for Designated Professions/Sectors, and the Non-means-tested Subsidy Scheme for Self-financing Undergraduate Studies in Hong Kong) will also be correspondingly revised to ensure consistency.

56.  Consistent with the documentation relating to its possible implementation, it can be said that the Policy as promulgated includes at least three policy aims, being:

(1)  to apply limited public resources in a targeted manner to benefit those with genuine, sufficiently close and established ties with Hong Kong;

(2)  to prevent public backlash over concerns that the Migration Schemes unfairly increase competition for local resources at the expense of Hong Kong permanent residence; and

(3)  to prevent the perception that immigrants are abusing the Migration Schemes, to gain educational and employment advantages on one hand while not genuinely committing to Hong Kong on the other.

57.  On the other hand, whilst the Applicants have suggested that the One Year Policy has the aim of increasing revenue or saving expenditure, I do not think that is correct. The reason for implementing the Policy and the One Year Rule is not to raise revenue or decrease subsidies or achieve savings on Government expenditure. The Policy does not change the number of subsidised places, which remain at 15,000 per year. Nor does the Policy change the level of subsidies granted to each UGC-funded university. It merely revises the eligibility criteria – so that the same pool of limited public resources is allocated among “local students”. It can also be recognised that the Policy did not bring about any change to the definition of “local students” or “non-local students”. The main aim is rather to ensure that subsidies funded by public resources are directed to those with the genuinely sufficiently close and established ties with Hong Kong.

58.  But it is correct that the staged implementation of the Policy was intended to allow affected persons a reasonable time to make their own plans, where it was stated that the change from the Previous Policy was not expected to have a significant impact on families with genuine intentions to come to Hong Kong for development.

59.  In this regard, relevant to later consideration, it seems to me that the Policy is one which included a transitional arrangement in the form of what has been defined as the One Year Rule. There are not two separate policies, because the transitional arrangements are part of the one Policy.

60.  It is also important that the Policy was directed at, and intended to change the approach adopted towards, the entire group of Dependant Children, and not just those studying for the HKDSE. Indeed, there is no specific reference to students studying for the HKDSE, and there is no specific reference to the location or nationality of students. The Policy is applicable to Dependant Children, irrespective of where they or their parents are from or as to what curriculum they might be studying.

F.  The Grounds of Review

61.  As already stated, there is no judicial review challenge to the Policy. The challenge is to that part of the Policy in the One Year Rule, and it is made on two independent grounds of irrationality and discrimination.

62.  Irrationality is asserted on the basis, in summary, that:

(1)  The express stated purpose of delaying the implementation of the Policy until 2028/29, and of having the transitional arrangements for the 2027/28 AY, is to ensure that existing visa holders would be able to make arrangements in order to comply with the new residency requirements.

(2)  However, while those in the 2028/2029 and later cohorts would have ample time to secure appropriate school places in Hong Kong, the timing of the announcement of the Policy made this nearly impossible or impracticable for the Applicants.

(3)  The Court will have no difficulty on the evidence concluding that the 87 school places needed to accommodate the Applicants (even ignoring other families in a similar position) could not be obtained within the very short period of time available giving the timing of the announcement of the Policy.

(4)  On the balance between two objectives in tension with each other – raising revenue while ensuring fairness to existing visa holders and their families – the One Year Rule defeats the very objective it was adopted to serve, and is irrational.

63.  Discrimination and incompatibility with Article 22 of the Hong Kong Bill of Rights (“BOR 22”) and Article 25 of the Basic Law (“BL 25”) is asserted on the basis, in summary, that:

(1)  The Policy places the Applicants, who share a common social origin in the Mainland, at a disadvantage to other students seeking university admission in Hong Kong post-secondary institutions by subjecting them to much higher fees.

(2)  There is a differential treatment on the basis of social origin – a core value or characteristic expressly protected under BOR 22, and discrimination on the basis of which the courts would extremely rarely find acceptable, even in the context of socio-economic policy – in addition to their residency and visa status.

(3)  The onus lies on the Government to justify the differential treatment, which it has singularly failed to do.

(4)  The Government’s own evidence positively shows that the One Year Rule is unconnected from, and in any event disproportionate to, the mischief that the Policy was promulgated to solve, namely the significant ‘uptick’ in recent years and the number of students studying for the HKDSE in the Mainland and taking up subsidised university places in Hong Kong after sitting the HKDSE as private candidates.

(5)  That mischief has nothing to do with students and the Applicants’ position. The One Year Rule could easily have been formulated to cover only HKDSE private candidates, whilst excluding students studying international curricula.

(6)  Alternatively, the One Year Rule could have been announced at a reasonable time to give those affected a fair and proper opportunity to make arrangements in order to meet the new residency requirement.

(7)  Instead, at the last moment, the EDB chose to impose a kit rule covering international curricula, and the measure lacks a rational connection to the objective pursued, as well as being unnecessary and disproportionate.

64.  I can deal with the grounds, each in turn.

G.  Ground 1: Irrationality

G.1  The Principles on Irrationality

65.  The Court may intervene where a decision is Wednesbury unreasonable or irrational. It is trite that this is a high hurdle for an applicant to overcome. Essentially, the applicant must demonstrate that the decision is so unreasonable that no reasonable authority could ever have come to it. Put without the double negatives, what must be demonstrated is that the decision was outside the range of decisions reasonably open to the decision-maker in the particular circumstances. This does not require demonstrating that a decision is so bizarre that its author must be regarded as temporarily unhinged. Irrationality in the public law context instead identifies a decision of the sort which “does not add up”, or which has an error of reasoning which robs the decision of logic.

66.  In this context, it is the duty of the Court to leave decisions of fact to the decision-makers to whom the legislature has entrusted the decision-making function, including any relevant fact-finding function, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

67.  Both Mr Parker and Mr Ma made reference to R (Johnson) v Work and Pensions Secretary [2020] PTSR 1872. Mr Parker put it somewhat at the forefront of his submissions.

68.  The decision in that case was held to be one which turned on its own very particular circumstances, and – though it was a challenge to the rationality of the system adopted to calculate a certain group’s universal credit – it had no impact on the unlawfulness of the universal credit system more generally. The particular circumstances can be summarised as follows:

(1)  The appeal raised an issue arising from the implementation of a new system of universal credit providing Social Security benefits, a central platform of the UK Government’s social policy reform agenda since 2010.

(2)  The dispute concerned the method of calculating a claimant’s earned income for each monthly assessment period within that claimant’s period of entitlement to universal credit, where the amount of earned income in an assessment period is an important element when working out how much benefit the claimant will be awarded for that assessment period.

(3)  The dispute arose because, broadly, the system for identifying the income earned by a claimant in a particular assessment period did not accommodate the fact that people who are usually paid their salary on a particular day each month, such as on the last day of the month, will in fact be paid on a different day if their usual payment date falls on a weekend or bank holiday.

(4)  Were that to occur, in some circumstances that would lead to two monthly salary payments falling within one of the monthly assessment periods applicable for that claimant, greatly reducing the universal credit award in respect of that assessment period – and, in the following assessment period where no monthly salary payment is received that would subsequently lead to a much higher universal credit award.

(5)  This was termed the non-banking day salary shift.

(6)  Although it might be thought that this would even itself out over time, there were proper reasons to challenge this aspect of how the scheme operates, being (a) that great fluctuations in income, aggravated by the fact that universal credit is paid in arrears, make it difficult to budget for stable monthly outgoings leading to additional costs, and (b) that claimant is affected by this problem irrevocably lose money over the course of the year because they lose the opportunity to receive work allowance for the assessment period when they appear to have nil income.

69.  Obviously, the facts of the present proceedings are very different. Nevertheless, it can be noted that the English Court of Appeal addressed factors it considered to be relevant to the rationality of the part of the scheme (and the decision not to create an exception to allow for the non-banking day salary shift). At §§92ff, Rose LJ identified those factors as follows:

(1)  The size of the cohort affected: In that case, it was clear that the numbers likely to be affected was very substantial, possibly 85,000 claimants.

(2)  The duration of the impact on those affected: In that case, there was no way that matters could be put right once the start and end dates of their assessment periods were fixed by the date on which they submitted their claim. The problem would arise in several months each year and would last throughout the years of the claimant’s period of entitlement.

(3)  The arbitrary nature of the occurrence: In that case, the arbitrary nature of the problem arose from the lack of credit claimants being alerted by staff at the Jobcentre from which they made their claim for universal credit to the problems that would arise for them if the end date of their assessment period coincided with the day of the month in which their salary is paid.

(4)  Disincentivising work: The objective of incentivising work was a fundamental tenet of the new system. However, it might have the opposite effect in the circumstances giving rise to the judicial review challenge.

70.  At §107, Rose LJ recognised that the threshold for establishing irrationality is very high, but it is not insuperable. He concluded that the case was one of the rare instances where the refusal to put in place a solution to a very specific problem was so irrational that the threshold was met, because no reasonable decision-maker would have struck the balance in that way.

71.  Underhill LJ agreed with the judgment of Rose LJ. But he started at §113 by specifically recognising the extraordinary complexity of designing a system such as universal credit, and that it necessarily involves a range of practical and political assessments of a kind which the Court is not equipped to judge. He also accepted that, in order to be workable, any such system may have to incorporate bright-line rules and criteria which do not discriminate fully between the circumstances of different individuals. He fully accepted that a Court should avoid the temptation to find that some particular feature of such a system is “irrational” merely because it produces hard, even very hard, results in some individual cases. I place particular weight on these points.

72.  However, in the particular case, that was not a sufficient answer, for what Underhill LJ considered at §114 to be the following reasons (in my summary of them):

(1)  The non-banking day salary shift is common and entirely predictable.

(1)  It is arbitrary effect is now well recognised, whether or not it was actually predicted when the scheme was being designed.

(2)  The effect has a severely harmful impact on very large numbers of vulnerable claimants, and they can do nothing about it.

(3)  The adverse impact of receiving substantially lower payments in absolute terms was not the inevitable consequence of the application of some fundamental principle of the legislation.

(4)  If anything, the present operation of the scheme runs positively counter to its declared purpose.

(5)  Hence, it cannot be accepted that there is no way in which an appropriate adjustment can be made without prejudicing the overall statutory purpose.

73.  At §116, Underhill LJ considered the relevant form of unlawfulness best to be characterised as irrationality, though it also had echoes of the Padfield principle. The various characterisations are, he said, simply aspects of the fundamental question of whether Parliament can have intended the rule-making power to be exercised in a way which produces so arbitrary and harmful an impact on the respondents and the very many other claimants who were in the same position. He did not believe that it could.

74.  Ultimately, it seems to me that the Johnson case does not provide the degree of support suggested by Mr Parker for the Applicants. For example, the size of the cohort, the extent and the duration of the impact on the cohort, are fundamentally different from as arises on the facts in the present case. It is no wonder that the very particular nature of the facts of the case were emphasised as leading to the recognised rare circumstances for intervention.

75.  It seems to me that Johnson is really best described as authority for the proposition that a policy which produces consequences apparently detrimental to its stated purpose may be irrational, depending on the facts of the case, but that the assessment of irrationality is always context-specific. The case does not weaken, and in fact it emphasises, the proposition that establishing irrationality creates a high hurdle, and that the Court will be very slow to intervene in a situation of a policy set by reference to complex features involving a range of practical and political assessments of a kind which the Court is not equipped to judge.

76.  Mr Ma also placed reliance on the case of R (SC) v Secretary of State for Work and Pensions [2022] AC 223 at §§ 97, 125 and 144-146. Though perhaps focused on the question of proportionality (and I shall keep it in mind for that purpose too), there is use in considering the case on the question of irrationality. From that case, I draw the following propositions:

(1)  The case materially addressed the question whether the Court should respect the policy choice of the executive or legislature in relation to general measures of economic or social strategy in the context of welfare benefits unless it is manifestly without reasonable foundation.

(2)  In the context of welfare benefits (and by analogy subsidised university fees), the Court will look at the compatibility of the system overall, without giving undue weight to the circumstances of the individual.

(3)  This is because such systems, to be workable, have to deal in broad categorisations which will inevitably affect some people more prejudicial than others.

(4)  There is nothing alien or new about an approach which, in general, accords a high level of respect of the judgment of public authorities in the field of economic or social policy.

(5)  However, according appropriate respect to the choices made in the field of social and economic policy does not prevent the Court at the same time providing a safeguard against unjustifiable discrimination or irrationality.

(6)  Close scrutiny may be applied with a difference of treatment is based on “suspect” grounds.

(7)  But, the authorities which are concerned with “suspect” grounds of differential treatment might be contrasted with others which concern non-suspect grounds.

(8)  Residence is not one of the so-called suspect grounds.

(9)  In other words, the administrative law test of unreasonableness is generally applied in contexts such as economic policy and social policy with considerable care and caution (and the same is true of the test of proportionality).

77.  I shall apply these various principles.

G.2  The Construction of the Policy

78.  Ground 1 requires establishing the proper construction or interpretation of the Policy, in accordance with the well-settled principles applicable to a judicial review which is premised on the meaning of a government policy. Those principles include that what is the meaning of the policy is a matter for the Court to construe objectively in accordance with the language used and in its proper context, and the material policy should not be construed as if it was a statutory or contractual provision.

79.  I also keep in mind that although both sides have, to some extent, put forward an argument based upon their respective subjective belief about what the Policy should mean (or what they might prefer it to mean), the construction exercise requires the Policy to be read objectively.

80.  The thrust of this ground as introduced in the Applicants’ written submissions is that the One Year Rule is irrational because it sets the strike a particular balance, but singularly fails to do so. In short, the argument goes that the One Year Rule defeats its own objective.

81.  The particular balance, as submitted by Mr Parker, was between increasing revenue (or, more accurately, decreasing subsidies) while avoiding unfairness. However, I have already rejected the idea that any aim of the Policy or the One Year Rule was actually to increase revenue or decrease subsidies. Properly described, the aim was and is to ensure that the subsidies go (only) to students with a sufficiently close connection to Hong Kong, in particular by reference to the period of residence required for Dependant Children.

82.  Nevertheless, the Applicants also submitted that the objective meaning of the Policy includes the following (“Narrow View”):

(1)  First, in saying that affected families will be allowed reasonable time to make your own plans, this meant sufficient time for families already holding dependant visas, and intending for their children to take up post-secondary education in Hong Kong, to make arrangements to bring themselves within the new residency requirement in order to qualify as local students.

(2)  Secondly, in saying that the policy change was not expected to have a significant impact on those families, this meant that (a) it was expected that those currently holding dependant visas would have a reasonable opportunity to make arrangements to meet the new residency requirement and thus avoid the detrimental impact of the policy change, and (b) those affected families were not expected to have to take steps to accomplish this that would adversely affect their child’s education in a material way.

83.  This meaning is also said by Mr Parker to flow from the further facts that:

(1)  allowing the children of talented migrants to access educational opportunities in Hong Kong as local students is part and parcel of the prevailing immigration policy;

(2)  the Government appears to have decided it would be wrong and unfair – or counter-productive to its aim to attract talent – to ‘pull the rug’ out from under families already admitted under the Migration Schemes, by imposing a new residency requirement upon their children without any notice;

(3)  the language of the Policy also makes clear that the transition period is to allow affected persons a reasonable time to make their own plans, and that the change is not expected to have a significant impact on families with a genuine intention to come to Hong Kong for development;

(4)  the EDB appears to have proceeded on an assumption that there were vacancies at secondary schools in Hong Kong, including some international schools offering mainstream non-local curricula – showing, even if the assumption is wrong, that there was a belief that the Applicants will be able to take the steps required to meet the new residency requirement notwithstanding the timing of the announcement.

84.  Mr Parker also submitted that the argument put forward in §118 of the Ji Sang affirmation, in addition to putting an ‘ex post facto gloss’ on the Policy, is unsustainable and incompatible with the context, because:

(1)  The Government’s acknowledgement of “unavoidable impacts”, but institution of the Policy despite knowing that those impacts were certain to materialise, would render superfluous the words “reasonable time to make their own plans”.

(2)  The argument that the Policy causes little disruption to non-local students studying the HKDSE syllabus in the Mainland simply fails to address the position of non-local students studying international curricula – yet it is the Secretary’s case that the Policy was consciously designed to apply to all non-local students regardless of curriculum.

(3)  The suggestion that students studying an international curriculum can always switch to the HKDSE (where a large number of vacancies available in public sector schools) only highlights the extent of the significant impact of the One Year Policy on the Applicants. A switch in curriculum in the final year of secondary education is self-evidently disruptive and highly detrimental from a pedagogical perspective.

(4)  The argument that the impact of the One Year Rule is largely financial and insignificant for students hailing from resourceful backgrounds is incoherent and finds no support at all and the wording of the Policy. In any event, the assertion as to the backgrounds of the Applicants is not evidentially supported, and curriculum and family means are not correlated.

85.  I see some force in the suggestion that the Narrow View is more consistent with the language and logic of the One Year Rule (and the Policy), for the following reasons:

(1)  The Narrow View flows naturally from the inherent logic of the Policy. There is no reason to formulate the transitional arrangements by reference to a tiered residency requirement specifically, unless the intention is for the 2027/28 AY cohort to have a realistic chance of fulfilling a one-year (as opposed to two-year) residency period and qualify for the subsidised places.

(2)  The EDB’s letters to the Applicants’ parents on 23 and 25 September 2025 indicate that even after the Policy announcement, the Government intended the one year residency requirement to be fulfillable and presumed that places were available in Hong Kong secondary schools offering international curricula. In gist, the EDB had encouraged the affected parents to peruse the admission requirements of various local and international schools in Hong Kong, whose contact details were available on EDB’s website, and reiterated that policy change would not have a big impact on families with real intentions of building their lives in Hong Kong. Even in the evidence filed, the Secretary has maintained that such places were realistically available.

(3)  The Government claims that the purpose of the One Year Rule is to equalize the Policy’s effective dates for the 2027/28 AY and 2028/29 AY cohorts, where both cohorts must begin residing in Hong Kong by September 2026 at the latest to fulfil their respective one- or two-year residency requirements. This gives both cohorts the same 13 months to make arrangements. However, this is arguably a red herring, where it can be said that the real hurdle is not the 13 months, but the 2-year international exam curriculum (be that the IB, A-Levels, or AP) and the practical impossibility of a midway transfer. At the time the Policy was announced, the 2028/29 AY cohort had 13 months before beginning the two-year curriculum, which they could fully utilize to make arrangements, whereas the 2027/28 AY cohort was left with mere weeks to make arrangements.

(4)  Should the intention behind the One Year Rule really be to give the 2027/28 AY cohort 13 months to make plans other than transferring to Hong Kong for their final year of secondary school, it might be said there is no difference between having the transitional period versus having the Policy come into effect immediately. If that cohort wanted to study overseas, or pay the non-subsidized Hong Kong university fees for the first two years, they would have 13 months to do so whenever the Policy would come into effect, because they have approximately 13 months from 31 July 2025 until they needed to apply for university.

(5)  While it is true that that it was never within the Government’s power to ensure transfers for international curriculum students, it is equally true that the Government could have given the 2027/28 AY cohort more time and a better chance to transfer and fulfil the one-year residency requirement.

86.  I also accept the force in Mr Parker’s submission that the wording of the Policy in the press announcement shows that it was anticipated, and perhaps intended, that those in the Applicants’ position would be probably able to avoid the impact of the new measure by meeting the residency requirement. As he put it, it might well be wondered what possible function the One Year Rule was intended to serve, if not that.

87.  On the other hand, the Secretary contended that the One Year Rule is merely designed to afford affected students and families reasonable time to consider various alternatives and to develop an individualized plan in their best interests (“Wide View”). Examples of such plans would or could include:

(1)  transferring to Hong Kong to meet the one-year residency requirement;

(2)  continuing to study in the Mainland;

(3)  moving to Hong Kong, but continuing studies with the Mainland school remotely;

(4)  going overseas for university; or

(5)  undertaking university studies in Hong Kong, but paying non-local fees for the first two years.

88.  As put by Mr Ma in his submissions, under the One Year Rule, the relevant residence period effectively commenced from September 2026 onwards, leaving affected students and families with the buffer time of around 13 months (i.e. August 2025 up to and including August 2026) to consider their circumstances, make their own plans and decide on their next steps. Hence, Mr Ma submitted that the objective of the One Year Rule was to afford the affected students and their families reasonable time to sort out their thoughts and priorities, ultimately enabling each family to develop a plan in their own best interests, having considered all relevant individualised factors, such as the affected children’s stage of study and educational needs, academic ability, adaptability, financial circumstances, and family preferences as to schooling and location. That was the purpose of the reference to “allow[ing] affected persons reasonable time to make their own plans” as stated in the press release announcing the Policy.

89.  Mr Ma also submitted – and I agree – that it is important to see the Applicants’ case in its proper context that the Policy itself is not under challenge. Hence, he submitted, it can be said that the Applicants are not focusing the correct interpretation of the Policy or the One Year Rule on the terms of the Policy itself, to ascertain what they mean and how they work. Instead, the Applicants have broadened the construction process to include various remarks made by the Administration in the announcement of the Policy, and at other times and places. They have also relied on other policies entirely, such as those applicable to the various Migration Schemes.

90.  Mr Ma submitted that it is simply incorrect for the Applicants to contend for the Narrow View, namely that the express stated purpose of implementing the Policy in a phased manner with the One Year Rule was to ensure that existing visa holders will be able to make arrangements in order to comply with the new residency requirements. In fact, that purpose was not expressly stated, and is not to be inferred reading the announcement as a whole. Further that could not have been the intention, where – as is obvious and well-known – it was simply not within the Government’s power to implement any measure to ensure that Dependant Children would be able to continue pursuing the same or materially the same non-local curricula upon relocating to Hong Kong.

91.  Mr Ma also emphasised in submissions that:

(1)  It is not for the Court to question or guess the underlying policy objective of the specific rule or measure enacted within this context. Rather it is for the branches of government to set and decide on policy objectives, and to express them through legislation, directions and guidelines.

(2)  Where a subject matter is remote from ordinary judicial experience and requires making choices of a painfully invidious nature, and where the Government has provided evidential explanatory statements of the implementation or operation of the scheme, the Court would unlikely go behind such a statement.

(3)  If there is no reason to doubt a judicial review respondent’s version of events sworn to in evidence, the applicant will have failed to discharge the burden of proof he bears. (Of course, the Court may decline to accept the respondent’s evidence if there is something about it, such as that it is internally contradictory, inherently implausible or inconsistent with other incontrovertible evidence.)

92.  Therefore, Mr Ma submitted, once the One Year Rule is correctly and properly understood – even assuming as a fact that the alleged practical difficulties described by the Applicants in securing their preferred secondary school places in Hong Kong – those difficulties do not render the One Year Rule as defeating its own objective.

93.  Whilst there is obviously some force in favour of adopting the Narrow View, on balance it seems to me that the Wide View is the correct construction. The Policy as a whole is clearly intended to be applicable to every Dependant Child, irrespective of where he or she comes from (which of itself may have significant influence on what curriculum he or she is studying). Further, the families of each of the Dependant Children would necessarily have myriad different personal circumstances, preferences and choices. Whilst they may well choose to seek to achieve the residency period requirement, that is clearly not the only choice open. That seems to me to accord best with the phrase in the announcement of the Policy that the timing was intended to “allow affected persons reasonable time to make their own plans” (the detail of which is not further specified).

94.  The announcement also expressly identified that when formulating the revision leading to the Policy (including the One Year Rule), the Government fully listened to various views in society and sought to strike the right balance, in such a way as not to have a significant impact on families with genuine intentions to come to Hong Kong for development.

95.  As to the assessment of the potential impact of the Policy and the One Year Rule on affected families, Mr Ma submitted that the Government made a genuine assessment that the revision was not expected to have a significant impact on families with genuine intentions to come to Hong Kong for development. Essentially, Mr Ma pointed to §118 of the Ji Sang affirmation (and the other paragraphs referenced in that paragraph). I shall not repeat them all here.

96.  However, amongst the points emphasised was that the financial position of students from families generally expected to have a greater financial capacity than an average household would be materially the same regardless of whether or not they managed to enrol in non-local curricula in Hong Kong. This is because either they must pay the higher tuition fees charged by the Hong Kong secondary schools offering non-local curricula, or if they failed to do so they have to pay non-subsidised fees at the university stage. Furthermore, the Government never intended, and was never in a position, to guarantee admission to any particular non-local schooling or curriculum arrangements.

97.  The key point is that the Government has taken the initiative further to review the Policy and the One Year Rule since the commencement of these proceedings. It has explored the viability of (1) setting the transitional arrangement to a duration of less than one year, and (2) imposing no residency requirement for the 2027/28 AY at all. But as explained in §86 of the Ji Sang affirmation (see above), both options were not considered to be feasible.

G.3  Whether Self-Defeating

98.  I have already accepted that, on what seems to me to be the proper construction of the Policy and the One Year Rule, the latter is not self-defeating. However, for the sake of completeness, I shall go on to consider this point.

99.  Mr Parker submitted that the timing of the announcement of the Policy meant that affected families, or at least that segment of them whose children were then studying international curricula, were not afforded the time needed to make arrangements in order to comply with the new residence requirement – at least not without imposing a serious disadvantage on the Dependant Children’s education and university prospects. That, he submitted, not only undermined but cut across the central pillar of the Policy objectively construed.

100.  It seems to me that the Applicants have provided evidence that transferring at short notice, or transferring in the last year of an international curriculum, has either not been feasible or includes practical difficulties and potential disadvantages. Even as to the case advanced for the Secretary, in part focusing on the potential transfer of students from an international curriculum to the HKDSE curriculum, I accept Mr Parker’s submission that it has real difficulties:

(1)  While this is possible in principle, a switch of curriculum in the final year of secondary education – leading up to the critical university entrance exams – is self-evidently disruptive and highly detrimental from a pedagogical perspective. The HKDSE is designed as a three-year programme. On any view this would amount to a very significant impact.

(2)  A cross-curriculum transfer is inherently disruptive. The HKDSE is structured as a three-year program and itself builds on the three prior years of junior secondary education offered in Hong Kong. Students transferring into the HKDSE programme without the benefit of the junior programme might be placed at a significant competitive disadvantage to their peers.

(3)  The late date of the announcement of the Policy has also precluded the Applicants from being able to compete on the merits for places in top HKDSE schools. The vacancies identified by the Secretary in the evidence are inherently likely to be at public sector schools which are perceived as being less competitive, hence the vacancies in the first place.

(4)  The HKDSE curriculum includes ‘school-based assessment’ (“SBA”). The Secretary states that the absence of existing SBA results from previous years does not prevent a student from transferring into the HKDSE syllabus or fulfilling the requisite SBA requirements. But, even if not an absolute bar, SBA assessments nevertheless remain a key component of the HKDSE curriculum.

(5)  As for studying remotely, physical attendance at school has important educational and social benefits. It would be unfair to say that such a change cannot have a “significant impact” on the affected families.

101.  If the purpose of the One Year Rule is to allow the 2027/28 AY cohort to ensure fulfilling a one year residency requirement – and despite the Secretary’s evidence advancing the contrary position – I accept that the Applicants’ evidence at least indicates that is not feasible in practice, at a minimum not without significant disadvantages.

102.  Indeed, I think there is real force in Mr Parker’s submission that the mischief identified by the Government in its review leading to the change in policy was focused on the phenomenon of HKDSE private candidates taking up increasing numbers of subsidised tertiary places. It may be that it is easier for HKDSE students to comply with the One Year Rule, then it is for students of an international curriculum to do so. But it does seem that the EDB at least did not have uppermost in mind the position of students of international curricula.

103.  I acknowledge that the EDB says that it deliberated extensively before announcing the Policy and One Year Rule, including surveying the public, the Dependant Children’s parents, reviewing overseas practices, and considering and rejecting various alternatives (such as making the policy HKDSE-specific, or changing the timeline of the transitional arrangements). But it is a fact that Dependant Children studying international curricula were never expressly mentioned in the discussion or consideration documents, and so there is no clear evidence that the EDB took Dependent Children who are studying international curricula into account as an affected subset. The potential difference of difficulties in complying with the residence period required to come within the One Year Rule may not have been expressly considered.

104.  But that would not necessarily be the end of the story. This is particularly so, where the wording of the Policy in the press announcement also does not look specifically at, and does not mention only, Dependant Children who are students studying for the HKDSE, or only children from the Mainland, or children of parents who have come under various Migration Schemes to Hong Kong from the Mainland.

G.4  Materiality

105.  As I have already set out, the Court should avoid the temptation of finding a policy irrational simply because it produces harsh results for a small subset of claimants. Therefore, the Court should consider whether the impact on the Applicants, albeit a relevant factor, is also a material one in light of all the circumstances.

106.  It is now tolerably clear from the case law that the relevant consideration which the respondent failed to take into account must be material or substantial before it taints the legality of a decision: see, for example, Epoch Group Ltd v Director of Immigration [2011] 3 HKLRD H2 at §55.

107.  As it might be put differently, even where the irrelevant factor played a significant or substantial part in the decision-maker's thinking, the decision may – even if exceptionally – still be upheld. This can be where the Court is satisfied that it is clear that, even without the irrelevant factor, the decision-maker would have reached the same conclusion. There is, in theory at least, a possibility that, even if the Court concludes that it ought otherwise to set aside a decision on the ground that, for example, a legally irrelevant factor was taken into account, it can nonetheless uphold the decision, if it is satisfied that it would be pointless to require the decision-maker to reconsider the question afresh, because he would reach the same answer.

108.  In this case, it seems to me that:

(1)  The Policy causes little disruption to non-local students studying the HKDSE syllabus in the Mainland. There is an established mechanism to facilitate their transfer to Hong Kong public sector secondary schools, and so the One Year Policy is feasible for the 2027/28 AY cohort residing outside Hong Kong but studying the DSE.

(2)  The parties have given broad-brush evidence that HKDSE students form the majority of the 2027/28 AY cohort.

(3)  The only real detriment that the Applicants are claiming is financial, namely the increased costs of non-subsidized university fees.

(4)  That detriment may not even be applicable – and likely would not be applicable – for the whole of the university study period, because eligibility is assessed at the beginning of each academic year.

(5)  The Secretary has also made the salient point that schools offering international curricula in Hong Kong typically charge higher fees than the Mainland.

(6)  Hence, Applicants’ financial position may in practice be materially the same or similar whether or not they manage to enrol in a Hong Kong secondary school now and bring themselves within the ambit of the One Year Rule.

(7)  It comes down to a matter of timing and what is best for each family. As the Secretary submits, the choice is between bearing the increased costs now and qualifying for lower university fees later, or paying lower school fees now and higher university fees later but being able to continue in a familiar secondary school environment.

(8)  On balance, the financial impact may be similar either way.

(9)  It is, of course, correct that not every family will be in the same financial position. However, some overall mathematical set off is likely applicable to at least a significant proportion of those in the position of the Applicants and their families.

(10)  Financial aspects are, in any event, only one of many potential factors which may be brought into an individual family’s balancing of considerations.

(11)  Furthermore, even if the Court were to find that the Government failed to consider the relevant factor of the Applicants’ interests at the time the One Year Rule was formulated, Mr Ma has submitted – and I accept – that it would be futile to quash the Policy, or the One Year Rule, at this point because the Government has now fully considered the factor and nevertheless found the policy justifiable. Should the One Year Rule be quashed and remitted to the Secretary, he would merely make the same decision again.

109.  That there may be other ‘matches’ for the perceived problem – or even a better ‘match’ – does not seem to me to alter the analysis. The Court’s role is not to draft policy, or to identify the best available policy which the Court thinks would best address the perceived concerns.

G.5  Conclusion on Irrationality

110.  On substantive review, I dismiss the Applicants’ contention that the One Year Rule is irrational.

H.  Ground 2: Discrimination

H.1  The Applicable Principles

111.  BL 25 provides that:

All Hong Kong residents shall be equal before the law.

112.  BOR 22 provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

113.  Discrimination occurs where, without justification, the complainant is treated less favourably than others on the basis of a protected characteristic. As recently identified by me in K (an infant) v Secretary for Justice [2026] 1 HKLRD 517 [A#13] at §240, this may occur in one (or more) of three forms:

(1)  Direct discrimination occurs where the complainant is treated less favourably than a person who is in a relevantly similar situation.

(2)  Indirect discrimination involves the application of an ostensibly neutral criterion which operates to the significant prejudice of a particular group.

(3)  Thlimmenos-type discrimination occurs where the complainant receives the same treatment as persons in significantly different situation.

114.  In this case, the Applicants assert all three forms of discrimination.

115.  The question whether a measure is discriminatory is bound up with whether the differential treatment can be justified. Focusing on whether the complainant and possible comparators are similarly situated in the abstract is usually unprofitable and apt to mislead. The real issue is whether the difference of treatment can withstand scrutiny.

116.  Not every measure which differentiates based on a suspect grounds will fail to pass muster. However, the respondent will have to provide weighty or convincing reasons to justify the challenged difference in treatment applying the standard of reasonable necessity.

117.  It is settled that the onus of justification under the proportionality analysis. The respondent, who must demonstrate that the difference in treatment (1) pursues a legitimate aim, (2) is rationally connected to the legitimate aim; (3) is no more than necessary to accomplish the aim; and (4) viewed in the round, is proportionate and does not impose an excessive burden on the individual.

118.  The Applicants acknowledge, correctly, that the Policy generally pursues a legitimate aim and can be readily justified. The Applicants apparently do not accept that the Policy, or One Year Rule, is rationally connected to the legitimate aim. But perhaps the battle ground is essentially as to whether the Policy does no more than necessary to accomplish the name and is proportionate. As will be seen, this significantly overlaps with the argument under Ground 1 that the One Year Rule is irrational because it defeats its own objective.

H.2  The Discrimination Claimed

119.  As asserted in the Form 86, the three types of discrimination said to afflict the Applicants are:

(1)  Direct discrimination: The Applicants are singled out on the basis of their dependant visa status, and/or the fact that they do not hold Hong Kong permanent resident status. That is both a discreet status of its own, and overlaps necessarily with national and social origin.

(2)  Indirect discrimination: The condition imposed by the Policy, if treated as ostensibly neutral, disproportionately affects those whose national or social origin lies elsewhere – in particular Mainland children, who make up the bulk of the dependants of those migrating to Hong Kong under the TTPS and the QMAS.

(3)  Thlimmenos discrimination: The Applicants are treated in the same way as foreign students even though they are in a materially different position – the difference being that the Applicants’ families have relocated to Hong Kong delivers residents pursuant to the Migration Schemes.

120.  They can be considered each in turn, but it is also necessary to look at what is said to be the protected characteristic of the Applicants.

H.3  The Protected Characteristic

121.  With respect, it is unclear what the relevant protected characteristic is as asserted for the Applicants.

122.  The broad framework the Applicants have adopted for the discrimination ground is as follows:

(1)  The Applicants are non-permanent Hong Kong residents, and share a common social origin in the Mainland.

(2)  Before the policy change, the Applicants would have been able to attend universities in Hong Kong while paying the same university fees as all other Hong Kong residents, and far less than non-residents.

(3)  Under the Policy, the position is reversed.

(4)  After the change:

(a)  the Applicants will be treated less favourably than all other Hong Kong residents, even those who are similarly situated in terms of physical residence in Hong Kong – a Hong Kong permanent resident, for example, would not need to fulfil a residency requirement to qualify for local fee status; and

(b)  the Applicants will be treated in the same way as foreign students who have no prior connection to Hong Kong at all.

123.  Hence, Mr Parker articulated the protected characteristic as the Applicants’ “dependent visa status” which “overlaps necessarily with national and social origin” and alternatively, their “common social origin” in Mainland. However, neither formulation is a recognized protected characteristic under Hong Kong discrimination law.

124.  Social status refers to inherited social status, i.e. social class, caste, socio-occupational category. As Mr Ma submitted, the imposition of the residency requirement upon Dependant Children, i.e. dependant visa holders who are below 18 years old when first issued with such visa, has nothing at all to do with their social origin. No evidence has been given in relation to the Applicants’ social status.

125.  I also accept Mr Ma’s submission that the Applicants’ argument, which seeks to transmute a dependant visa, or permanent resident status or residency into “social origin” is effectively a backdoor argument contrary to the Fok Chun Wa case. Quite simply, “residence” is not a suspect ground. The residency requirement, which is imposed upon dependant visa holders who were below 18 years old when first issued with the visa, does not relate to any core value. Visa status is a matter of personal choice or aspiration.

126.  With regards to nationality, the Applicants base this submission on the comparison with Hong Kong permanent residents. Mr Parker suggests that the only reason the Policy stipulates that the Applicants must fulfil a residency requirement, whereas Hong Kong permanent residents living overseas will not have to, is because of the nationality difference. This suggestion is, with respect, incorrect or misplaced:

(1)  If the protected characteristic was national origin, the Applicants are being treated the same way as any other foreign students. They have not been singled out for their PRC nationality.

(2)  Nor have the Applicants made a broader claim that all foreign students holding a dependent visa status are the subjects of discrimination.

(3)  Indeed, the Applicants’ complaint is being treated in the same way as these other foreign students.

(4)  The Applicants cannot at once claim that their nationality puts them at an unjustified disadvantage vis-à-vis Hong Kong permanent residents, but at the same time justify giving them an advantage over foreign immigrants of other nationalities.

127.  The differentiating factor that the Applicants rely on is thus seemingly not nationality but their dependent visa status itself, and perhaps even their dependant visa status as dependants of persons who have come to Hong Kong under the under Migration Schemes targeted specifically at attracting Mainland talents (because they seek to differentiate themselves even from other foreign students who hold dependant visa status). Alternatively, it might be thought that the asserted differential status is simply in the different curriculum studied.

128.  I accept that where differential treatment is based on a “core value” relating to personal or human characteristics including social origin, the Court would extremely rarely find this acceptable, and would subject the relevant legislation or decision to particularly severe scrutiny: see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §77. But, immigration status is not a protected characteristic under Hong Kong law. Much less so is immigration status under a particular migration scheme, or at further remove on dependant status. Dependant visa status is conditional and depends on external circumstances, in stark contrast to protected characteristics which are by nature inherent and immutable “personal or human characteristics” involving the “respect and dignity that society accords to a human being”. Further, as Mr Ma submitted, any differential status based upon the study of a different curriculum does not get off the ground.

129.  The Applicants’ trouble in identifying a protected characteristic causes conceptual confusion over the relevant comparator. Hence, the Applicants claim not one but three types of discrimination, each against a different comparator group (if a comparator is identified at all). This seems to me to reflect their difficulty substantiating for what the Applicants are being discriminated and that the detriment suffered is ‘discriminatory’ in nature at all.

H.4  Direct Discrimination

130.  As to direct discrimination, Mr Parker submitted that the Applicants are singled out on the basis of their dependant visa status and/or the fact that they do not hold Hong Kong permanent resident status. The identified comparators are therefore students who hold Hong Kong permanent resident status and thus do not have to fulfil a residency requirement.

131.  This would be relevant if the Applicants’ argument was that the Policy favours Hong Kong permanent residents over all other foreign students on the basis of nationality, but that is not their submission. The Applicants seek to distinguish themselves not only from Hong Kong permanent resident students, but also other foreign students.

132.  Furthermore, with reference to the Policy’s aim of a targeted use of public funds to benefit those with a genuine connection to Hong Kong, permanent residents and Dependant Children who are not residing in Hong Kong are not in a comparable position. The context is eligibility to access limited public resources in the form of the subsidised fees. As Mr Ma submitted, it is obvious that Hong Kong permanent resident, having the right of abode in Hong Kong and not being subject to any conditional limit of stay, would have such an affiliation to Hong Kong (even if they do not physically reside in Hong Kong). The same cannot be said for Dependant Children who remain outside Hong Kong during the period of the limit of stay as prescribed by their visas. The difference is apparent and justified on the basis of their status alone.

H.5  Indirect Discrimination

133.  As to indirect discrimination, I accept the following propositions: see, for example, Essop v Home Office (UK Border Agency) [2017] 1 WLR 1343 at §§24-29:

(1)  It is not necessary to show why a particular ‘provision, criterion or practice’ (“PCP”) puts one group sharing a particular protected characteristic at a disadvantage when compared to others. It is enough that it does. Sometimes, perhaps usually, the reason will be obvious. But sometimes it will not be obvious.

(2)  Whilst direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic, indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. It is, in essence, dealing with hidden barriers which are not easy to anticipate or to spot.

(3)  The reasons why one group may find it harder to comply with the PCP than others are many and various. They could be genetic, social, or perhaps involve another PCP working in combination with the one at issue. The examples show that the reason for the disadvantage need not be unlawful in itself. They also show that both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem.

(4)  There is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage.

(5)  Where a protected group is affected disproportionately by a criterion, and the disparate impact has not been justified, the criterion can be held to be indirectly discriminatory.

(6)  But it is always open to the respondent to show that his PCP is justified and there should be no reluctance to reach this point. There may well be very good reasons for the PCP in question.

(7)  There is no finding of unlawful discrimination until all four elements of the definition are met, and the requirement to justify a PCP should not be seen as placing an unreasonable burden upon respondents, or is casting some sort of shadow or stigma upon them.

134.  But, again in this case it is not clear who the comparator is said to be:

(1)  The Applicants submit that the residency requirement disproportionately affects those whose national or social origin lies outside Hong Kong. But, the requirement in fact does not apply towards Hong Kong permanent residents at all.

(2)  If the comparator is other foreign students, it is not at all clear that the Applicants are disproportionately affected. If anything, it is easier for Dependant Children residing in the Mainland to relocate to Hong Kong than those residing in places like the UK.

H.6  Thlimmenos Discrimination

135.  The Applicants submit that the Policy and One Year Rule treat them in the same way as foreign students even though they are in a materially different position – the difference being that the Applicants’ families have relocated to Hong Kong to live as residents pursuant to the Migration Schemes.

136.  Once again, it seems to me that the Applicants have not identified a clear comparator group:

(1)  Foreign students without dependant visa status would not be able to qualify for subsidized fees regardless of how long they have lived in Hong Kong – and likely would not be in Hong Kong at all – and so they are not a relevant comparator.

(2)  If the argument is that the Applicants should be treated differently from other foreign students on dependant visas, that veers into very unsatisfactory territory. There is no basis in law for distinguishing the recruitment of immigrant talent from the Mainland versus from other countries under the same Migration Schemes.

137.  Indeed, overall, the Applicants’ position under all three discrimination claims seems to rest precariously on the premise that their unique immigration status as the holders of dependant visas, as dependants of persons who have entered Hong Kong under the Migration Schemes, itself distinguishes them from all of the other identified comparator groups. They appear to argue that they should be entitled to differential treatment on the basis that they have the expectation of enjoying educational benefits in Hong Kong as part of the HKSAR’s policy of attracting talent from the Mainland under the Migration Schemes. In doing so, the line is blurred between the Policy in question and the entirety of the separate and stand-alone talent Migration Schemes, which do not give rise to a protected characteristic and which do not form part of the matrix of relevant considerations for the present exercise.

138.  I will, however, go on to consider the justification analysis.

H.7  Justification Analysis

139.  In this context, the Applicants’ analysis seems to me to suffer from frequently confusing and interchanging references to (1) the Policy, (2) the One Year Rule, and (3) the various Migration Schemes. Each of them appears to have been deployed as the rationale underpinning the balancing exercise required by the four-step justification test. However, the correct analysis should focus on justifying the differential treatment of the Applicants with reference to the One Year Rule alone.

140.  As to a legitimate aim, I have already noted that the Applicants accept that the Policy – at least as a whole – generally pursues a legitimate aim and can be readily justified. Reference can also be made to Tigere v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820 at §§46, 53 and 56, where the UK Supreme Court held that the rule which requires the student to have been lawfully resident in the UK for three years immediately preceding the start of the University course to be eligible for student loan pursues a legitimate aims and is plainly justified.

141.  I accept that there is a legitimate aim. First, I can dismiss Mr Park’s submission that, as a matter of law, saving revenue is not a legitimate aim capable of justifying discriminatory treatment. As I have already pointed out, neither the Policy nor the One Year Rule in fact have the aim of saving revenue, so such a principle does not bite.

142.  Further, the Applicants define the ‘less favourable treatment’ for the purposes of the discrimination ground as having to pay higher university tuition fees as ‘non-local’ students. However, it is contradictory to claim at the same time that (1) being subject to higher fees “can readily be justified” under the Policy and (2) that it constitutes discrimination with reference to the One Year Rule. I suppose it might be said that timing may change the reasonableness or rationality of a policy, but a longer notice period would never be able to ‘cure’ a discriminatory policy. The analysis appears to have veered from whether the One Year Rule pursues a legitimate aim to questioning the aims of the Policy itself, which the Applicants submitted they are not contesting.

143.  With regard to rational connection, Mr Parker emphasised that the perceived mischief of the increasing number of non-local students sitting the HKDSE as private candidates has nothing to do with non-local students like the Applicants, who are studying international curricula. Hence, the solution which makes the Applicants nonetheless subject to a policy intended to address different patterns is over-inclusive. Mr Parker described it as a problem/solution, where the medicine cures more than those with the disease.

144.  Mr Parker also placed weight on the decision in Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950 at §§140-143, where the imposition of a seven-year residency requirement on access to social welfare was held not to be rationally connected to the legitimate aim of safeguarding the system’s sustainability. Mr Parker submitted that the observations in that case are equally apposite. For example, he submitted that the One Year Rule was intended to support and promote the important policy underpinning the Migration Schemes, whereas its timing and implementation undercut that very objective.

145.  But, again, it seems to me that this again confuses the relevant points, where the Applicants do not clearly identify which policy is the one to which the Secretary must prove a rational connection and argue general unfairness/unmet expectations. The focus of the analysis should be on the alleged discriminatory consequences of the One Year Rule. Yet the Applicants’ analysis does not follow this logic. It at times attempts to attack the One Year Rule with reference to the Policy itself (despite the Policy not being in contention), or the One Year Rule/Policy with reference to the Migration Schemes.

146.  So far as the Applicants argued that the one-year residency requirement fails to achieve the aim of the One Year Rule – which (as stated) they define as supporting and promoting the important policy underpinning the Migration Schemes, namely the attraction of top talent to Hong Kong by allowing their dependent children to enjoy the educational benefits offered to local students – this is not the stated purpose of the One Year Rule, which is just to minimize the impact of the Policy on all students holding dependant visas during the transition period. But the Applicants also submitted that the aims of the Policy (shifting the goalpost) can be readily achieved even if the One Year Rule is modified and the 2027/28 AY cohort is given more time, given there are too few international curricula students to make a material difference. However, if the Applicants can be carved out from the Policy based on their immigration status, this seems to open the floodgates to any number of exempted groups. It would also seem to create an unjustified loophole in the Policy, which can be avoided as long as a student studies an international curriculum.

147.  On the other hand, it seems to me that the underlying problem is the entire category of Dependant Children who are not ordinarily resident in Hong Kong. Therefore, there is a rational connection between the residency requirement and the aim of the One Year Rule (as part of and as well as the Policy).

148.  Mr Parker or submitted that the One Year Rule is disproportionate, in that the differential treatment imposed on the Applicant has not been justified, both for the reasons argued by him earlier as well as reasons further developed. He argued that the case is of a measure that response to a real problem, but nevertheless is irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification.

149.  The disproportionality was argued to exist for at least three reasons, being:

(1)  the manner and timing of its announcement defeats an objective;

(2)  the breadth of it, and its timing, have no objective justification; and

(3)  the derogation from the Applicants’ right to equality is manifestly without reasonable foundation, so that the standard of review would not make a difference to the answer to Stages 3 and 4 of the Proportionality analysis.

150.  Mr Ma submitted that at least some of these contentions are new plans, not pleaded in the Amended Form 86, and where no application to seek leave to amend has been made. Nevertheless, it seems that this is a point which can be addressed where it would be for the respondent to provide the justification. Mr Ma was on stronger ground when he submitted that the Applicants have misconceived the Secretary’s evidence in position. Insofar as the Applicant’s content that the Policy and the One Year Rule serve only to address the extent to which non-local HKDSE private candidates were taking up subsidised tertiary places, that is incorrect. He submitted, and I accept, that the situation regarding the non-local HKDSE students is what prompted the EDB to review the eligibility criteria, but they were not the only mischief the Policy sought to address.

151.  I accept that the root of the problem faced by the Government was the need for a student to demonstrate a genuine, sufficiently close affiliation and ties to Hong Kong in order to qualify for subsidised tertiary places. As already stated, that problem was equally applicable to all Dependant Children who remained outside Hong Kong.

152.  As to the standard of review, I accept Mr Ma’s submission that in socio-economic or other general policy matters not involving core values or fundamental concepts, it is not within the Court’s constitutional remit to determine matters of government policy (except where questions of legality arise). This is because the executive is better equipped than the Court to understand its ramification and the means of dealing with it. Here, the timing and manner of announcing and implementing the Policy and the One Year Rule as a transitional arrangement, intended to bring about the change of eligibility criteria for Dependant Children, required the choice of a cut-off or effective date, falling within the wide margin of appreciation afforded to the Government. This is particularly so, where the allocation of finite public resources is involved. I also agree that the Court should look at the compatibility of the system overall, without giving undue weight to the circumstances of the individual. A system such as that relevant to the current case, to be workable, will have to deal in broad categorisations which will inevitably affect some people more prejudicial lead than others.

H.8  Conclusion on Discrimination

153.  On substantive review, I reject the Applicants’ contention that the One Year Rule is unlawfully discriminatory.

I.  Result

154.  It is possible to have some sympathy for the position of the Applicants and their families, when faced at fairly short notice with the need to consider potential alternative arrangements than those almost certainly already in place. But the potential alternative arrangements would be various, depending on the individual circumstances and preferences of each family.

155.  Anyway, it may be that this case has really arisen because of something of a mismatch between the concept of and the actual use of a dependant visa. As I also indicated the beginning of this Judgment, it might be thought obvious that the very purpose of the grant of a dependant visa is for the person holding that visa to come to Hong Kong and take up residence (i.e. to come and live in Hong Kong) with the person on whom it is said he or she is dependant. A dependant seeks a visa, it is granted, and the dependant comes to live in Hong Kong – so that residence in Hong Kong is simply not an issue. But this case identifies, as do the statistics to which I have made reference, that holding a dependant visa for residence in Hong Kong does not always lead to residence in Hong Kong.

156.  In essence, the Policy brought about a change to close the ‘loophole’ created, perhaps originally as a result of an assumption that persons holding dependant visas would actually come to take residence in Hong Kong.

157.  The Applicants do not challenge the Policy which is to ensure that limited public resources are allocated to those with the genuine and sufficiently close connection with Hong Kong. They challenge only the part of the Policy providing for transitional arrangements, namely the One Year Rule. It seems to me that the Policy, including its transitional provision, falls to be considered as a whole. Whilst it is correct that the review leading to the new Policy was triggered by concerns about the numbers of HKDSE students studying as private candidates in the Mainland – and the internal considerations focused on that – the underlying issue about lack of sufficient connection, arising from lack of residents in Hong Kong is obviously equally applicable whatever curriculum is being studied.

158.  My conclusion is that – whether viewed separately or as part of the overall Policy – the One Year Rule is not irrational, at least not in any material way. Nor is it unlawfully discriminatory.

159.  In those circumstances, the Applicants’ substantive application for judicial review is dismissed.

160.  I presently see no reason why costs should not follow the event, and I would therefore order that the Secretary’s costs be paid by the Applicants, to be taxed if not agreed, with certificate for two Counsel. However, I shall make that order in the first place on a nisi basis, to become absolute if no application for variation is made within the next 14 days. Any such variation application will be dealt with on paper.