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  • Jul 29, 2014
  • Updated: 5:09pm
NewsHong Kong
COURTS

Foreign helpers' plea for permanent residency fails

Judgment by top court ends two-year saga over right of abode and denies request by the government for Beijing 'interpretation'

PUBLISHED : Monday, 25 March, 2013, 10:39am
UPDATED : Tuesday, 26 March, 2013, 11:27am

The top court ruled yesterday that foreign domestic helpers did not have the right to apply for permanent residency, affirming the government's right to impose immigration controls.

The landmark judgment ended the two-year right-of-abode saga that began when Evangeline Vallejos and Daniel Domingo, two Philippine domestic helpers who had worked in Hong Kong for more than 20 years, sought a judicial review of immigration law.

Mark Daly, solicitor for the two, said Vallejos was "calmly resigned" and that Domingo had called the ruling "unfair".

Eman Villanueva, spokesman for the Asian Migrants' Co-ordinating Body, said: "The ruling gives a judicial feel to the unfair treatment and social exclusion of foreign domestic workers in Hong Kong."

But also in its unanimous decision, the Court of Final Appeal rejected the government's controversial request that it seek an interpretation from Beijing, ruling it "unnecessary".

The request was seen by some as a backhanded attempt by the government to get Beijing to halt the flow of another group of unwanted migrants - children born locally of mainland parents - while putting the city's prized judicial independence at risk.

This means the judgment has thwarted the administration's attempt to solve right-of-abode issues involving domestic helpers and children born locally to mainlanders in one single case.

The government said it would "endeavour" to resolve the remaining right-of-abode issues within the local legal system, but fell short of saying that it would not directly seek an interpretation from Beijing.

Secretary for Justice Rimsky Yuen Kwok-keung told a briefing last night: "We are trying our very best to resolve all legal issues concerning [children born in Hong Kong to mainlanders] by legal avenues which are available within the local legal system.

"We will exhaust our means before we do anything [else]."

Academics and pro-democracy lawmakers said the current ban on mainland women whose husbands were not Hong Kong permanent residents from booking beds in public hospitals had been effective.

They said there was no need for the government to seek an interpretation from Beijing, which they said would damage Hong Kong's autonomy.

The Bar Association and Law Society said directly seeking an interpretation from Beijing would be likely to undermine the rule of law of Hong Kong. Law professor Albert Chen Hung-yee, a Basic Law Committee member, said there was only a slim chance the government would directly seek an interpretation from Beijing given the opposition from the public and the legal and political communities.

"I cannot see that the government has a good basis for it to seek an interpretation," he said, adding the zero-birth-quota measure had been successful. Law professor Michael Davis said: "The government should pursue local options. What they have done so far has had some success. There is really no reason to project beyond that."

Additional reporting by Associated Press

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octop8
In order to get a job under an employment visa, the foreigner needs to prove skills and qualifications and employer prove no one in HK can do the job. FDHs are not subject to this requirement and restrictions / conditions imposed on their stay. Therefore the status of FDH vs foreign skilled professionals is not the same. It is not about discrimination. The FDH can always apply for professional jobs and get a normal employment visa if qualified, no discrimination based on race, merely selection based on merit.
HK-Explorer
Americans put up fences, shoot women and children and make people go across th desert where they starve. That is how Americans treat mexcans wanting to go to US. Australians stop legitimate refugees and take them to camps where they are forced to live in squalor. Thais shoot refugees in the head because they are tired they come back over and over.
HK spends millions of $$ s to allow 2 Filipinos fight for residency. Gives them every opportunity to attack the constitution of HK. After they exhausted every avenue in this case the constitution was upheld. HK is a great place and people should be proud to live under a great legal system.
HK-Explorer
Westerners have to show a level of education, they have to show they are doing a job not done locally and they need to show they can support themselves. Thus adding to the community.
Domestic helpers do not need to show any of this. They just need to agree to do menial tasks like childcare, laundry and cook dinner.
Also be honest most ignore the kids, cook the dinner in the morning and sit on their phones and laptops all day. They are ok at laundry ( will give them that much).
Local part time helpers are much much better.
HK should change the rules and promote mainland maids in HK. Would fit in much better.
don67
I am not and will not comment on the fairness of the ruling. However, I cannot see how HK could possibly cope with the influx of so many low income and low skilled migrants. How long would the public housing queue be? On the flip side, how many of them would earn enough money to contribute and pay taxes? And for those that say "not all of them will or be able to afford to settle in HK", that's perhaps true. But put yourself in their shoes.... You are living in Manila or Jakarta, you or a family member is suffering from a serious illness requiring long-term/expensive treatment. Wouldn't you want to be treated in our relatively good public hospitals? I'm sure they would, and I wouldn't blame them as I'd do the same if given the choice. That's why they can't be given this choice, it's just unsustainable for HK.
oxymoron19
Forget this great polictical charade, the racist card and focus on the rational why the Filipnos are fighting it. Filipinos working in Hong Kong is a great privilege based from their lavish income. Yes you heard me right LAVISH ! They make 3 times what an average citizen make at home and that excludes free food and housing. It's figuratively a dream job for anyone back home having a chance to work as a domestic helper abroad. Sadly the truth is their country is indeed very underdeveloped and for a lack of a better word, Poor.
That said, their lack of contentment and leading them into greed by exploiting loopholes in the law so they could arrange for permanency, having a valid HK ID would allow them to compete for higher paying jobs and migrate here for a better life along with their families is too abysmally ambitious and pathetically ungrateful.
Let us not be hypocrites for once and admit that they know and we know it's all about HK is a haven from poverty. Most certainly HK doesn't have to worry about overthrowing a corrupted dictator every 2 or years. At least that's what they believe in and I don't blame them. But sorry we have our hands full already dealing with our cousins from the mainland so I hope they don't go head over heals over something that isn't going to happen.
anson
Sad for the FDH. Good for HK. When they sign a contract, enter Hong Kong they know the deal and really should try to stick to it.
superdx
Many people bring up why FDHs are treated differently than expats, but this incorrect. Expats have to get a working visa in HK, which in turn needs to be sponsored by a local company. The company also has to document why they are bringing in the expat. Reasons generally include a specific skillset which is rare in Hong Kong. While one could question the quality of this due process, it still must be done.
FDHs need no sponsor to work in HK. In many cases agencies bring them in without any qualifications or training.
When looking at it from this perspective, basically FDHs are trying to look for a shortcut, no local sponsor and no specific or rare skillset. Yes they have been here for 7 years but the entry means is a shortcut.
All that being said, yes FDHs can receive permanent residency! You just have to find a local company willing to sponsor your working visa. And no it doesn't mean a white collar job at a bank. i.e. you could take a course to get a Registered Nurse certification which would almost be quintuple a standard FDH salary, or you could apply for a job that teachers English since most are native speakers.
Don't take shortcuts to PR, earn it. Citizenship has to be won through a decent effort, not through a shortcut. 300,000 untrained workers is not what any society needs!
qiaohan
Foreign professionals are OK but not domestic helpers? Maids provide a useful service or they wouldn't be here. Why are westerners thought to be better? They both contribute to the well-being of HK in different ways.
Pure racism.
superdx
Paths to citizenship in Hong Kong is clearly laid out, you just need an employment visa sponsored by a local company. Immigrants are important to building a society and value is placed on skillsets that can enrich society as a whole.
The services provided by domestic helpers, while valuable, do not really enrich the society as a whole, i.e. they are low-skilled jobs that could be fulfilled by anyone. Even training is not a requirement, which a blue or white collar job is fundamental even for a bus driver.
If FDHs could achieve citizenship just by staying here for 7 years, we would have an influx of helpers who a generally uneducated and will require social aid. How much? If optimistically only 20% of these FDHs need social aid, it's still over 20,000 along with their immediate families. Hong Kong as a small city can barely handle mainland tourists and at the very least, they leave at the end of their trips. PR is a whole different logistics matter.
This is a matter of employment contract. I could hire a blue or white collar foreign worker and stipulate that my company does not endorse their PR, thus if they could not find another sponsor, they would have to leave. Which would be perfectly legal. FDHs are no different.
thenext
Just wondering how many domestic helpers have got PR in Singapore?

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