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  • Aug 28, 2014
  • Updated: 2:22pm

Legal fight that divides us

PUBLISHED : Tuesday, 18 October, 2011, 12:00am
UPDATED : Tuesday, 18 October, 2011, 12:00am
 

News

The government has vowed to appeal a High Court ruling against an immigration law that prevents domestic helpers from becoming permanent residents.

Foreigners are generally allowed to apply to settle in Hong Kong after living here for seven years in a row.

On September 30, Mr Justice Johnson Lam Man-hon, sitting in the Court of First Instance, said it was unconstitutional to exclude foreign domestic workers from that rule.

The exclusion, in the Immigration Ordinance, is against the Basic Law, Lam ruled.

Yet hours after cheers from maids and their supporters erupted outside the High Court, Secretary for Security Ambrose Lee Siu-kwong spoke up. He said the government 'firmly' believed the immigration law was constitutional and would appeal soon.

Mark Daly, a lawyer for Evangeline Banao Vallejos, a Filipino domestic helper who has lived in Hong Kong since 1986, said: 'We spoke to Ms Vallejos. She said, 'Thank God'.'

The ruling could affect 300,000 foreign domestic helpers in the city. It possibly clears their path to apply for permanent identity cards in future.

In May this year, official figures show, there were about 125,000 domestic helpers who had lived in Hong Kong for seven years or more.

Lee said the government would halt the processing and approval of all permanent residency applications filed by domestic helpers. But the government still accepts applications.

Vallejos had asked the court to rule that the exception in the law was against the constitution.

The government had argued that foreigners working as domestic workers in Hong Kong were not 'ordinarily resident' as required for permanent residency.

Judge Lam agreed with the helper.

This is an edited version of the SCMP report 'Maids' victory faces challenge' on October 1 by Austin Chiu and Martin Wong

Voices

'Thank God' - Evangeline Banao Vallejos, a long-time domestic helper in Hong Kong, after her lawyers tell her the court has ruled in her favour

'We really thank the helpers for the contribution to Hong Kong, but it should not be rewarded by granting them the right of abode' - Joseph Law, chairman, Hong Kong Employers of Domestic Helpers Association

'Today's victory is not just for migrant workers but also a victory for justice' - Eman Villanueva, spokesman, Asian Migrants' Co-ordinating Body, after the ruling

'How many maids in the city will be qualified? I do not think the number would be large' - Civic Party lawmaker Alan Leong Kah-kit

'The issue is not whether to give them permanent residence. The issue is whether they should be denied the right that is given to other non-Chinese nationals' - Gladys Li, a Civic Party co-founder and lawyer representing Vallejos

'Some have even branded foreign domestic helpers as locusts, treating them like lower-class citizens. These are vile and despicable remarks' - political commentator Albert Cheng King-hon, in his article 'Basic values', in the South China Morning Post on August 20

Issues

The judicial review of the law preventing foreign domestic helpers from applying for permanent residency in Hong Kong has stirred heated discussion. Here is a look at the issue on different levels.

The thing many Hongkongers are most concerned about is a huge influx of new immigrants who will be a drain on the city's resources.

People who support the domestic helpers think it would be racist not to let domestic helpers become permanent residents while granting that right to foreigners of other nationalities.

Joseph Law, chairman of the Hong Kong Employers of Domestic Helpers Association, presented a survey of 200 domestic helpers at a forum on October 2. Sixty-five per cent of the surveyed helpers said they would definitely apply for permanent residency in Hong Kong if they were allowed.

Law said he was worried that allowing domestic helpers to stay permanently in Hong Kong would trigger massive immigration. He said he appreciated the contributions of domestic helpers, but they were already given wage protection and a stable life in Hong Kong, so they should not get permanent residency.

Supporters of domestic helpers say the maids perform vital services to society and should be treated fairly. They also expressed doubt that most helpers would want to become permanent Hong Kong residents.

Activist group Socialist Action accused the government of racism. But lawmaker Regina Ip Lau Suk-yee rejected that notion. She said that there was nothing discriminatory about the Immigration Ordinance.

'Take the provisions governing 'ordinary residence' in Hong Kong,' she said. 'The relevant provisions exclude those categories of residents who are never intended to be accepted as permanent residents of Hong Kong, such as contract workers brought in under specific schemes to augment the shortage of a particular category of workers - for example, foreign domestic helpers - consular staff, people in custody, members of the People's Republic garrison in Hong Kong and officials of the central government posted to work [here].

'The provisions are colour-blind. Chinese residents not intended to be part of the permanent population are precluded from becoming 'ordinarily resident' irrespective of the length of their stay, in the same way as contract workers or consular staff.'

Civic Party co-founder Gladys Li represented domestic helper Evangeline Banao Vallejos at the judicial review.

Although the party denied it had anything to do with the judicial review, many people accused the party of using it to gain votes in future elections. If the domestic helpers became permanent residents, they would use their votes for the party, they said.

The government said that in May there were about 125,000 domestic helpers who had lived in Hong Kong for seven years or more. They could instantly become voters for the party if they gained permanent residency.

Much of this is speculation by opposing political parties. But it is a sign that the judicial review has hurt social harmony.

Responding to the party's critics, Civic Party leader Alan Leong Kah- kit said such political manipulation does not exist in a developed society like Hong Kong.

He added that Hong Kong people should respect the right of others to judicial review and the rule of law.

If the party planned to gain more votes as a result of the judicial review, its plans seem not to be working at all. Members of the public have pointed their fingers at the party for causing conflict in society, which forced many voters to turn their back on the party.

'Because of the court case, some residents, whom I have known for more than 20 years, said they would not vote for me in this year's poll, despite having supported me for the past two decades,' said Sumly Chan Yuen-sum, a Civic Party member and a district councillor for Lei Muk Shue East since 1985. He said that the case had changed the face of the district contests.

Judicial independence is one of the most treasured core values of Hong Kong society. And once again it is at risk.

An interpretation of the Basic Law in 1999 by the National People's Congress Standing Committee endorsed the government's stance. It ruled against the right of residency in Hong Kong for people with one parent who was not a permanent resident of Hong Kong when their children were born.

Ip believes that the government should seek a central government interpretation of the Basic Law over the right of abode ruling concerning foreign domestic workers.

She said that the government was unlikely to win any appeal against the High Court ruling.

Instead, the government should ask Beijing for its interpretation of 'ordinarily resident', she argued.

Yet this raises the question of what legal grounds the government would have to seek an interpretation from the National People's Congress since the issue falls under the city's internal affairs and so Hong Kong's courts should have the final say.

Civic Party lawmaker Ronny Tong Ka-wah quoted Basic Law provisions. He said the government did not have legal grounds to seek an interpretation as the issue did not relate to the responsibility of the central government or the relationship between Hong Kong and the mainland.

He added that the issue could be solved by revising the Immigration Ordinance.

Law Yuk-kai, director of Hong Kong Human Rights Monitor, also denounced the call for an early interpretation of the Basic Law.

'It would hide the truth of proper construction and examination of the law in courts,' he said.

Law added that it would also jeopardise the court's legitimacy.

Timeline

December 2010 - Long-serving domestic helper Evangeline Banao Vallejos applies for a judicial review of the Hong Kong immigration policy that prevents foreign maids from becoming permanent residents even though they meet the usual requirements for non-Chinese seeking the right of abode. The application is filed in the Court of First Instance by law firm Barnes and Daly.

July 28, 2011 - New People's Party chairwoman Regina Ip Lau Suk-yee says the government should ask for an interpretation of the Basic Law from Beijing on the issue.

July 29 - People who oppose domestic helpers gaining permanent residency create a Facebook page 'Against foreign helpers obtaining right of abode. Protect the welfare of Hong Kong people from being seized'. It calls for a protest outside the court when the case begins.

August 5 - The government says it will consider seeking Beijing's interpretation of the Basic Law on the issue only if it loses the court challenge.

August 21 - A day before the judicial review starts, supporters of domestic helpers gaining permanent residency clash with people who oppose it. Those opposed are marching to the Civic Party's headquarters in North Point when they are interrupted by supporters of domestic helpers. Fights break out, and police arrest some people.

August 22 - The judicial review begins in the Court of First Instance.

September 30 - The court rules a restriction preventing foreign maids from gaining permanent residency is unconstitutional.

October 2 - Two days after the domestic helpers' landmark legal victory, the Democratic Alliance for the Betterment and Progress of Hong Kong leads a march of about 300 people who bring with them the signatures of 90,000 who wanted to show their opposition to giving domestic helpers permanent residency.

October 4 - The government files an appeal against the court's ruling.

October 26 - The court will decide how its ruling should affect Vallejos' status.

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