Hong Kong Basic Law

Residence rights to focus on Basic Law

Right-of-abode appeal opens with government lawyer clarifying intent of its controversial request to court to seek ruling from Beijing

PUBLISHED : Wednesday, 27 February, 2013, 12:00am
UPDATED : Wednesday, 27 February, 2013, 10:12am

The city's government wants the Court of Final Appeal to seek a ruling from Beijing on the power of the National People's Congress to interpret the Basic Law, a lawyer for the administration told the top court yesterday.

In the first indication of the exact scope of the administration's controversial request to the court over the issue of awarding right of abode to foreign domestic helpers, David Pannick QC said the government wanted an interpretation of Article 158, which states that the power to interpret the mini-constitution "shall be vested in the Standing Committee of the National People's Congress".

The court is hearing an appeal by domestic helpers whose claim for permanent residence, under Article 24, after living in Hong Kong for more than seven years was rejected by a lower court.

Also yesterday, the court declined an application to join the domestic helpers' appeal that had been filed on behalf of an eight-year-old girl born in Hong Kong to mainland parents. The girl and her mother were concerned that her right of abode would be affected if the interpretation, which has far-reaching implications for children in a similar situation, was sought.

The court said the issues to be raised on behalf of the girl had already been adequately covered.

The appeal stems from a constitutional challenge mounted by Evangeline Banao Vallejos and Daniel Domingo, who have each worked in Hong Kong for more than 20 years. They succeeded in the Court of First Instance, which ruled that section 2(4)(a)(vi) of the Immigration Ordinance was unconstitutional in excluding foreign domestic helpers as a class from being recognised as "ordinarily resident" in Hong Kong, denying their right to apply for permanent residence.

The decision was reversed by the Court of Appeal last year.

Pannick said the government hoped an interpretation of Article 158 would clarify the binding effect of a 1999 interpretation made at the request of the Hong Kong government.

This included a statement, which did not form part of the main issue, saying the legislative intent of a Basic Law provision on different categories of people who qualified for permanent residency was "reflected" in opinions of the Preparatory Committee of the HKSAR in 1996.

The Court of Final Appeal ruled in 2001 that the opinions in question did not form part of the interpretation and were thus not binding on Hong Kong courts.

As a result, the top court ruled that any children born locally to Chinese nationals would have right of abode, regardless of the status of their parents.

If the top court makes the request sought by the government and if the National People's Congress rules the statement is binding on Hong Kong courts, children born in Hong Kong to mainlanders would lose their right of abode and foreign domestic helpers would also be excluded.

Pannick said the government would give the court a draft question today.

Michael Fordham QC, for the domestic helpers, said the Immigration Ordinance was unconstitutional in excluding foreign domestic helpers from being "ordinarily resident" - one of the requirements for permanent residency.

Fordham said the "ordinary and natural" meaning of the term "ordinarily resident" used in the Basic Law meant people who stayed in Hong Kong "voluntarily" and for "settled purpose".

He said that it did not confer an implied power for the legislature to enact domestic law to restrict the meaning of the term, which was a "constitutional instrument".

Fordham said it did not mean that the legislature could not impose immigration control.

Apart from ordinarily residing in Hong Kong for seven years, he said, non-locals also needed to have entered Hong Kong with a valid travel document and have taken Hong Kong as a place of permanent residence in order to acquire right of abode.

Control could be exercised by deciding what travel documents were considered valid and through the authorities' power to decide whether to grant extensions of stay to non-locals. This enabled them to break the seven years of continuous stay required for permanent residence.

The hearing continues today.