Request for Beijing's view on right of abode may have wider effect, government admits

QC for government admits broader implication for right of abode but says it is necessary to seek Beijing’s clarification

PUBLISHED : Thursday, 28 February, 2013, 12:00am
UPDATED : Thursday, 28 February, 2013, 4:59am

The administration's controversial request for Beijing's interpretation of the city's permanent residency law may have consequences more far-reaching than just a decision on foreign domestic workers' right of abode, the government has admitted.

Barrister David Pannick QC, for the government, made the comment yesterday, on the second day of an appeal lodged by two Filipino domestic helpers fighting for the right to apply for permanent residency.

The administration laid out two questions yesterday that it would like the top court to seek Beijing's clarification, amid criticism that it was trying to address at one go the right-of-abode issues involving both domestic helpers and children born in the city to mainlanders, at the expense of judicial independence.

"It's true that the consequence of reference may be wider, but it's … simply irrelevant," Pannick told the Court of Final Appeal. Rather, "necessity" was the criterion of the request, he said.

The government proposed asking Beijing the meaning of the word "interpretation" used in the Basic Law's Article 158(1), which sets out the power of the National People's Congress standing committee to make an interpretation. It also asked whether a peripheral statement made in a 1999 interpretation was binding in local courts.

In 2001, the top court ruled the statement was not binding. If Beijing now rules it as binding, foreign domestic helpers will be denied the right to apply for permanent residency and children born in the city to mainlanders will lose their right of abode.

Lawyers for the two Filipino workers, Evangeline Banao Vallejos and Daniel Domingo, criticised the government for trying to reopen the 2001 case, which was already settled, "through the back door".

The government specified only two provisions in the Basic Law when it requested an interpretation in 1999, so that interpretation should not be extended to cover other provisions on permanent residency, including those relating to foreign domestic helpers, Michael Fordham QC pointed out.

It was unconstitutional for the Immigration Ordinance to exclude them from being ordinarily residents in the city, he said.

Other non-locals can apply for permanent residency after seven continuous years of living ordinarily in Hong Kong.

In the government's defence, Pannick said the workers' presence in the city was "out of the ordinary". "They were told that their admission is for a very restricted purpose and for very restricted periods," he said.

Conditions in their contracts stipulated that they must leave the city upon expiry of their employment, he pointed out.

The drafters of the Basic Law must have intended to give the Legislative Council the discretion to decide what types of people were not recognised as ordinarily resident for the purpose of immigration control, he said.

Asked by judges if he could provide a list of features of "ordinary residence", Pannick said it would be "foolish" for a lawyer to give one when the Basic Law drafters had not done so.

The hearing continues today.