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  • Updated: 6:34am
NewsHong Kong

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.



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This article is now closed to comments

If someone is born in HK then they are HK permanent residents. That is just simple logic and is unquestionable as everyone must belong to at least 1 residency so birth place must be a given.
Everyone else needs to follow the decision of the government. By normal rights someone after 7 years would get permanent residency. However if when that person first arrived in a country and were told they would not receive that entitlement and they still decide to come then they should not be surprised when they are not given it.
Sadly, I do not believe HK is in the position to give 100,00+ (it will only increase yearly) places to live as it is having trouble housing its own people. If we take a conservative number of 20,000 who decide to stay then where will they live. HK already is behind 200,000 homes and most likely can never catch up. where will they find another 20,000?
Their 20,000 children will not be Chinese speakers thus will need 20,000 additional places in English schools. Where will those places be found? Their are currently waiting lists of thousands of kids waiting for places. Add another 20,000 then we cannot educate the kids already in HK.
food prices will also soar and grass root residents will suffer greatly. HK government and judiciary need to stand strong and say no. It is for the good of the people of HK.
i am only interested in the decision of Justice Michael Hartmann, you will see he will give very solid and constructive decision. Rest i am not sure. lets see. we keep our fingers cross.
IRDHK, I respect your views but also disagree with them.
First, you state that everyone who is born in HK gets permanent residency. This is not correct. Under Article 24 of the Basic Law, only persons of Chinese nationality who are born in HK have the right of abide. Expatriate and other non-Chinese children do not have that right. It may seem unfair but that's what the Basic Law (the constitution of HK) says and we must abide by it.
Second you say that everyone else must follow the government's decisions. But what if the Government had decided that nobody can criticize the Chief Executive, or all foreigners must give up their religion, or all Hong Kongers cannot travel for 3 years? None of these decisions would or should be valid. This is because they contravene the rights to freedom of speech, religion and movement that are guaranteed in the Basic Law. Likewise, the Basic Law grants the right of abode to persons who have ordinarily resided in HK for 7 years. Be cautious in asking courts to "stand strong" to the extent of ignoring rights in the Basic Law. Your rights may be next in line!
Finally, the article refers to 100,000 children born to Mainland parents but does not estimate the number of helpers who will apply for and be granted PR. It may well be much less. Also, there is no doubt that the government will be able to refuse contract renewals of domestic helpers in the future so that they don't reach the 7 years. Last, most helpers speak Cantonese!


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