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Part of Common Law is that constitution be subject to legislative refinement: Judge
The High Court on Wednesday heard arguments that the government does not retain the power to define the Basic Law, or to make provisions violating its articles, for the purpose of immigration control.
Counsel for appellant Evangeline Banao Vallejos, Gladys Li Chi-hei, submitted that if the government is able to “address the application of the concept of ordinary residence”, it would not be an issue of “interpretation”, but a “selective application” of the natural and ordinary meaning of the phrase.
The presentation countered submissions on Tuesday by government counsel David Pannick, who argued that the administration retains a “margin of discretion” to define the term, to execute immigration control.
Li continued her argument that the Basic Law, with its “words and phrases specifically chosen”, should not be overridden by any additional provisions, not even under “the guise of immigration control”.
Chief Judge Andrew Cheung Kui-nung, however, said it is part of Common Law that the constitution be subject to legislative refinement and modification. Li argued that legislature is not entirely free. She also argued that unlike during the pre-1997 period, when the colonial government was completely free to define and make provisions for who could have the right of abode, that was not the case in the SAR today.
Li said the foreign domestic helpers (FDHs), were they of Chinese nationality, would be qualified for right of abode after not less than seven years of consecutive residence, according to category two stated in Article 24. “Many people came from other countries to work in Hong Kong as civil servants. So why single out a certain category of occupation? Does one only look at the immigration status as a domestic helper when determining whether they are ordinary residents?” Li asked.
The counsel gave the example of Vallejos, who served only one employer during her stay in Hong Kong from 1987 until now. Li said although Vallejos did go back to Philippines every two years when her contract duly expired, she was offered renewal of contract by her employer. That, Li argued, was like Vallejos being offered a compulsory vacation – similar to other employees, and thus should be considered as ordinarily residing in Hong Kong.
The argument, Li said, reflected that the impugned provisions under question are irrespective of whether the “nature and quality of the time FDHs spent in Hong Kong was ordinarily resident”.
But that argument did not seem to persuade the judges. Vice-president Justice Frank Stock said that Vallejos’ absence were still “enforced” every now and then. Vice-president Justice Robert Tang Ching also argued that Vallejos could not come back to the city as she wished, even though a visa was issued every time. Tang said the point of her contract may not be sufficient to corroborate Vallejos’ ordinary residency.
Meanwhile, Li said pre-1997 documents leading to the drafting of Basic Law could not be applied to “control or inform” the meaning of “ordinary resident”. Tang said, “certainly not control, but could they inform (the meaning of ordinary resident)?”
Stock also raised a question, “isn’t it a powerful fact if it was intended that these categories are excluded for all time?” He added that it is not just about the issue of the meaning of “ordinary resident” per se.
Stock said Hong Kong’s situation is dramatically different from other regions. He cited the city’s history as a dependent territory and involved two sovereign powers. Stock said the provisions of Basic Law show lots of repetition to those of the Sino-British Joint Declaration, and could hardly be ignored. The court will resume on Thursday.
China Daily – By Andrea Deng