Foreign domestic workers in Hong Kong

Court overturns maid abode ruling

PUBLISHED : Thursday, 29 March, 2012, 12:00am
UPDATED : Thursday, 29 March, 2012, 12:00am

Hong Kong's Court of Appeal yesterday overturned a landmark ruling that gave tens of thousands of domestic helpers the right to apply for permanent residency.

A panel of three judges unanimously rejected arguments by the lawyers of Filipino maid Evangeline Banao Vallejos - who has worked in Hong Kong since 1986 - that an immigration provision barring domestic workers who have lived in the city for seven years from seeking permanent residency was unconstitutional.

The court said the government must have the power to impose immigration controls to meet changing political, economic and social needs.

Mr Justice Andrew Cheung Kui-nung wrote in the judgment: 'It is a fundamental principle in international law that a sovereign state has the power to admit, exclude and expel aliens. The difference of treatment flows inevitably from the fact of the political boundaries which are drawn across the globe.'

The judgment dealt a blow to 290,000 domestic helpers in the city but eased government concerns of a possible influx of immigrants.

Mark Daly, the lawyer for Vallejos, said: 'It is highly likely we are going to take this to the Court of Final Appeal. There is no time for disappointment. We will fight until we see justice.'

He said the case involved important issues including the rule of law, strict legal interpretations and principles of dividing people into classes.

The court ordered Vallejos to pay the government's legal costs arising from the appeal and the original judicial review.

The appeal stemmed from a ruling by Mr Justice Johnson Lam Man-hon, of the Court of First Instance, who found in September that the Immigration Ordinance was inconsistent with the Basic Law because it excluded foreign domestic helpers from being 'ordinarily resident'.

The court yesterday said their presence in Hong Kong was 'very special', not 'ordinary'.

Ambrose Lee Siu-kwong, the secretary for security, said the government welcomed the judgment. As the case was likely to reach the top court, the government would continue to withhold the processing of right of abode applications filed by foreign domestic helpers until there was a final ruling, he said. Some 901 applications have been received since October.

Lee said there was no plan at this stage to amend the Basic Law, seek an interpretation from Beijing or change the policy on importing foreign domestic helpers.

Ronny Tong Ka-wah, a senior counsel and legislator, said the ruling had implications on another controversial issue involving right of abode - that of babies born in Hong Kong to mainland women.

'It would be legally justifiable for the government to act upon the judgment to bar mainlanders from giving birth in Hong Kong by means of ... amending the Immigration Ordinance,' he said.

But Lee said the judgment had no implication on the issue of mainland women giving birth in Hong Kong.

The other two judges on the panel were Mr Justice Robert Tang Ching and Mr Justice Frank Stock.

Ruling reasons

The legislature is free to define, refine, elaborate and adapt the meaning of 'ordinarily resident' to meet changing political, economic and social needs to impose immigration control.

Whether the stay of foreign domestic helpers in Hong Kong is 'ordinarily resident' should be viewed objectively from the perspective of society, regardless of the workers' own subjective purposes.

Foreign domestic helpers' presence in Hong Kong is not different from refugees and prisoners in kind but only in degree.

Refusing permanent residency to foreign helpers is in keeping with the rights guaranteed in the Basic Law