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Foreign domestic helpers do not have the right to apply for permanent residency in Hong Kong, the Court of Appeal ruled in favour of the government on Wednesday, overturning a lower court’s controversial ruling.
The appeal court held, in a unanimous ruling, that the exclusion of foreign domestic helpers from applying for a permanent identity card was constitutional.
It held that the presence of such workers in the city was special and they were different from refugees and prisoners not in type, but only in degree.The challenged immigration provision gives effect to the Joint Declaration signed by the British and Chinese governments in 1984.
The appeal stems from a ruling by Mr Justice Johnson Lam Man-hon, of the Court of First Instance, who found in September that an immigration provision was unconstitutional. This is because it excluded foreign domestic helpers from being “ordinarily resident” in Hong Kong, a finding that was overturned by the Court of Appeal.
The Court of Appeal allowed the appeal filed by the government, worried about a possible influx of immigrants, and set aside the Court of First Instance ruling.
It also ordered Filipino Evangeline Banao Vallejos, the judicial review applicant who has worked in Hong Kong since 1986, to pay the government’s legal costs arising from the appeal and the original judicial review.
An appeal to the top court was likely, said Mark Daly, the lawyer representing Vallejos. “It is highly likely that we are going to take this to the Court of Final Appeal,” he said.
Asked if he was disappointed with the ruling, Daly said: “There is no time for disappointment. We will fight until we see justice.”
He said the case involved important issues including the rule of law, strict legal interpretations and principles of dividing citizens into classes.
Daly said he would study the judgment in detail with his client.
In a 66-page judgment handed down on Wednesday, Mr Justice Andrew Cheung Kui-nung, chief judge of the High Court, wrote: “In my view, the exclusion of foreign domestic helpers under section 2(4)(a)(vi) [of the Basic Law] does not encroach upon the central characteristic of the term ‘ordinarily resident’.
“It is a category of exclusion not different in kind, but only in degree, from the pre-existing categories of excluded persons, for instance, Vietnamese refugees and imprisoned or detained persons,” Cheung wrote.
“Regardless of her own subjective intention or purposes, a foreign domestic helper’s stay in Hong Kong is for a very special, limited purpose from society’s point of view – to meet society’s acute demand for domestic helpers which cannot be satisfactorily met by the local labour market,” he said.“Hence, their stays in Hong Kong are highly regulated so as to ensure that they are here to fulfil the special, limited purpose for which they have been allowed to here in the first place, and no more,” Cheung wrote.
Cheung ruled that there was no case of discrimination, as found by the lower court.
Cheung cited a judgment by permanent judge Kemal Bokhary as saying “different treatment of citizens and non-citizens in regard to the right of abode is a common if not invariable feature of the laws of countries throughout the world, including those with constitutions which prohibit discrimination.”
“The difference of treatment flows inevitably from the fact of the political boundaries which are drawn across the globe,” Cheung said.The other two judges, Mr Justice Robert Tang Ching and Mr Justice Frank Stock agreed.
Stock said the challenged immigration provision no doubt intended to give effect to the Joint Declaration signed in December 1984.
It stated that among “those who would have the right of abode in the city were all Chinese nationals born or who had ordinarily resided in Hong Kong before or after the establishment of the city for seven years or more as well as persons of Chinese nationality born outside Hong Kong of such Chinese nationals”.
After the court ruling in September, the government temporarily halted the processing of applications for permanent identity cards from foreign helpers.
If you fancing reading the technical details of the rulings, have fun at the following link:
Immigration Court Ruling (Opens in a new window)