Maids' victory faces challenge
The government has vowed to follow all means of appeal against yesterday's landmark court ruling against an immigration law that prevents domestic helpers from seeking the right of abode.
High Court Judge Johnson Lam Man-hon, sitting in the Court of First Instance, declared as unconstitutional the exclusion of foreign domestic workers from a rule that allows foreigners to apply for the right to settle in the city after seven years of uninterrupted residency.
That provision, in the Immigration Ordinance, contravenes the Basic Law, Lam ruled.
'The government respects but is disappointed with the ruling,' said Secretary for Security Ambrose Lee Siu-kwong, adding that an appeal was imminent.
A lawyer for plaintiff Evangeline Banao Vallejos, a Philippine domestic helper who has lived in Hong Kong since 1986, said they had told her of the court's decision.
'We spoke to Ms Vallejos. She said, 'Thank God',' said Mark Daly, adding that Vallejos was out of the city yesterday. 'Today's victory is not just for migrant workers but also a victory for justice,' said Eman Villanueva, for the Asian Migrants' Co-ordinating Body, which supported Vallejos's challenge. He said he was confident 'not many' foreign domestic helpers would 'rush' to claim right of abode in light of the judgment.
But hours after cheers erupted outside the High Court, Lee said the government 'firmly' believes that the immigration provision refusing to recognise domestic helpers as ordinarily resident even after seven years is constitutional and would soon file an appeal.
The ruling carries far-reaching implications for 300,000 foreign domestic helpers in the city, possibly clearing their path to apply for permanent identity cards, which is required by all foreigners before they can settle in the city permanently. According to government sources, as of May this year there were about 125,000 domestic helpers who had lived in Hong Kong for seven years or more.
Lee said the government would suspend the processing and approval of all right-of-abode applications filed by domestic helpers, but it would continue to accept applications. The government will ask for the court's permission for the suspension on October 26, he said, when both parties are due back in court.
Lee brushed aside concerns that such a suspension would be contempt of court, because, he said, the court had decided only on the constitutionality of the Immigration Ordinance but did not order the government to do anything specific.
He side-stepped the question whether the government would ultimately seek an interpretation on the definition of 'ordinary residence' from Beijing, if its appeals through the courts were unsuccessful.
Daly said: 'We think it's irresponsible of them to be even thinking of going to Beijing. We think that an issue like this should be left to Hong Kong's court system. Have faith in the Hong Kong judiciary.'
The judge ruled in favour of Vallejos after the government's lawyers failed to persuade the court that excluding foreign domestic helper from the designation 'ordinarily resident' was necessary for implementing immigration control.
The government also failed in arguing that, while there was no definition of 'ordinary residence' in the Basic Law, the legislature could create laws to clarify or refine of the meaning of such terms.
The judge also rejected the government's claim that a helpers' residence in Hong Kong was 'out of the ordinary'. Conditions imposed on their stay - such as having to renew their contract every two years, live with their employers, return to their place of origin periodically and not bring dependants with them - made their circumstances different to other foreigners', it had argued.
'In my judgment, these limits cannot alter the character of a foreign domestic helper's residence in Hong Kong during the time she is permitted to stay,' the judge wrote. 'She resides here for a settled purpose, that is to say, employment, and she comes and stays here voluntarily.'
Since 2003, about 200 foreign domestic helpers filed applications for permanent residency, but none was approved. By contrast, 8,300 applications were filed by other foreigners last year and 7,000 this year, with a success rate of 90 per cent.
The lawyers will return to court on October 26 to discuss what relief measures Vallejos will be granted.
Two other judicial challenges filed by foreign domestic helpers' families will be heard this month. They have been lodged on behalf of Daniel and Irene Domingo, a couple living in Hong Kong for 26 and 29 years respectively and whose three children were born in the city; and Josephine Gutierrez, a domestic helper since 1991, and her son, Joseph, who was born in Hong Kong in 1996 and now lives here on a student visa.
