Court of Final Appeal to begin abode hearing

Case will determine if domestic helpers have the right to apply for permanent residency and may affect children born locally to mainlanders

PUBLISHED : Tuesday, 26 February, 2013, 12:00am
UPDATED : Tuesday, 26 February, 2013, 5:50am

An issue that has been in and out of the courts since 1999, with far-reaching implications for hundreds of thousands of city residents, may be entering the final lap of its judicial go-round today.

The Court of Final Appeal is due to begin hearing a challenge to the right of abode law, to determine whether foreign domestic helpers have the right to apply for permanent residency. The appeal may also reopen the case of whether children born locally to mainlanders have the right of abode they enjoy now.

The government has asked the top court to seek a clarification from Beijing of the national government's 1999 interpretation of the permanent residency law. It remains to be seen whether the court will accept that request - widely seen as a challenge to the city's rule of law.

Today's appeal stems from a challenge by Filipino domestic helper Evangeline Banao Vallejos, who has worked in Hong Kong since 1986. Claiming the immigration law was unconstitutional for not recognising domestic helpers as "ordinarily residing" in Hong Kong during their stay here, she won an initial judicial review in September 2011.

But the Court of Appeal overturned that decision in March last year, leading to today's case.

If the government's request for referral is allowed, it might have implications for children born in Hong Kong to mainland parents, because the 1999 interpretation includes comments on the status of both domestic helpers and such children. The 1999 ruling said the legislative intent of the Basic Law on permanent residency was "reflected" in the opinions of the Preparatory Committee of the HKSAR in 1996. That committee said Chinese citizens born in Hong Kong were permanent residents if a parent was lawfully living in Hong Kong when the child was born.

But in 2001, Hong Kong's top court ruled that the committee's opinions were not binding on it. The court decided that children born in Hong Kong to mainland parents had right of abode whether or not the parents were lawful residents.

Many observers have questioned whether referring the case to Beijing will weaken Hong Kong's judicial independence.

Under the Basic Law, the Court of Final Appeal must seek an interpretation from Beijing if the relevant provision of the Basic Law concerns affairs that are Beijing's responsibility, or relate to Beijing-Hong Kong ties.

The Bar Association has urged the government to ask the court to appoint a counsel to represent the estimated 100,000 locally born children with mainland parents in the case that begins today. Last week, the mother of a young girl born in Hong Kong to mainlanders lodged documents with the top court asking that she be allowed to join today's case.

The appeal will be heard by Chief Justice Geoffrey Ma Tao-li and Mr Justices Patrick Chan Siu-oi, Roberto Ribeiro, Michael Hartmann and Anthony Mason.