Blow for Helpers Seeking Residency
Austin Chiu, Simpson Cheung and Tanna Chong
A High Court judge said yesterday that the government could temporarily stop processing foreign domestic workers' applications for permanent residency until the conclusion of its appeal against an earlier ruling.
That ruling, made last month, said it was unconstitutional to deny the helpers the right to apply for permanent identity cards after seven years of uninterrupted residency.
The government decided not to seek a stay of that judgment after Mr Justice Johnson Lam Man-hon, in the Court of First Instance, said the administration would not be in contempt of court if it suspended processing applications for permanent residency. Lam made the original ruling on September 30.
But legal experts warned that this could create confusion and lead to more legal challenges.
Secretary for Security Ambrose Lee Siu-kwong said the government would push again for an accelerated hearing of its appeal.
It was the latest twist in a complicated legal battle after the Court of First Instance ruled last month that Filipino Evangeline Banao Vallejos, a domestic helper in the city for 25 years, has the right to apply for permanent residency in Hong Kong because the immigration provision barring her from becoming 'ordinarily resident' was unconstitutional.
That ruling could open the door for other foreign domestic helpers to claim right of abode in Hong Kong. The government announced an appeal and said it would seek a temporary suspension of the court order until the case reached its conclusion. But Lam yesterday said such an application was unnecessary, as his original ruling does not compel the government to process claims by other helpers.
But he did warn that the government may have to face more legal challenges for putting on hold applications by right of abode claimants.
As for Vallejos, the judge yesterday sent her case back to the Registration of Persons Tribunal to reconsider whether she meets the requirements for permanent residency.
Eric Cheung Tat-ming, a legal scholar at the University of Hong Kong, questioned the government's wisdom in dropping the suspension application. 'The government cannot decide by itself to put on hold the processing of all right of abode applications [without facing consequences]. Such a decision would lack solid legal foundation,' Cheung said. 'All applications should be processed within a reasonable time.'
Cheung said it would be difficult for the tribunal to decide on the Vallejos case. If the tribunal granted her permanent residency now - but the government won its appeal later - it would raise the question of whether Vallejos' right of abode was still valid, he said.
Lawmaker Regina Ip Lau Suk-yee, a former director of immigration, said the judgment would cause many problems in implementation and put pressure on frontline immigration officers.
'It will be hard for the Immigration Department to differentiate other claims from the case that it has been directed to process,' said Ip, chairwoman of the New People's Party. 'It will give rise to a lot of complaints, and if the Immigration Department is flooded with a lot of similar applications it will require additional resources from [Legco].'
The secretary for security said he was not worried about the possibility of more judicial challenges arising from the government's decision to stop processing applications temporarily, calling it a fundamental right of people living in Hong Kong.
Lee said there had been a significant increase in the number of right of abode applications filed to the Immigration Department. In the past it received on average one application every month; it received 20 applications on Tuesday alone.