Lawmakers 'must have right to decide who lives in city'

PUBLISHED : Wednesday, 22 February, 2012, 12:00am
UPDATED : Wednesday, 22 February, 2012, 12:00am

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A court ruling giving foreign domestic helpers the right to apply for permanent residence restricted lawmakers' power to decide who was eligible to permanently settle in Hong Kong, a court heard yesterday.

Lawyers for the government made the claim in the Court of Appeal when launching an appeal against the ruling.

The appeal was spurred by fears that if the ruling stands there will be an influx of immigrants who would strain the welfare system.

At the end of 2010 there were 285,000 such workers in Hong Kong, the court heard. About 117,000 had lived in the city for at least seven years and might be entitled to permanent residence if the ruling were upheld.

But Gladys Li, SC, for Filipino domestic helper Evangeline Banao Vallejos, whose request for residency became the test case, said the government arguments undermined the rule of law and were 'unconstitutional manipulation of the individual's status'. Vallejos has been working in Hong Kong since 1986.

In the Court of First Instance in September, Judge Johnson Lam Man-hon ruled in favour of Vallejos. He found that the challenged immigration provision was unconstitutional because it excluded foreign domestic helpers from being 'ordinarily resident'. But he said it was not a case about discrimination.

David Pannick, QC, for the government, said because permanent residence was such a 'valuable status' that affected social, economic and immigration aspects of Hong Kong, Basic Law drafters must have conferred power to the legislature to define the meaning of the ambiguous term 'ordinarily resident'.

'There is no undermining of the rule of law if the legislature enjoys a certain margin of discretion,' he said. 'It is inconceivable that the Basic Law does not allow the legislature the power to define the ambiguous meaning and concept of ordinary residence, taking into account the social and economic factors arising from time to time.'

Pannick said the legislature had had discretion in defining the meaning of ordinarily resident since before the Basic Law. For example in 1982 it decided Vietnamese refugees were not 'ordinarily resident' and not entitled to permanent residence.

Even if he failed to persuade the court that the legislature enjoyed such discretion, he said he held that the presence of the foreign domestic helpers was so 'extraordinary' that they were an exceptional category, as in the case of refugees, prisoners and Gurkhas.

Pannick said the helpers were restricted to working for a specified employer, could not set up a household and had to leave the city within two weeks of their contracts terminating.

Beijing and Britain had agreed that foreign domestic helpers should not be regarded as 'ordinarily resident', as shown in material from before and after the enactment of the Basic Law in 1990, Pannick argued.

The appeal continues today.