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  • Apr 21, 2014
  • Updated: 8:36am
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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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2crazy4words
Whatever viewpoint you adopt, this judgement was a convenient political solution. The government got what it wanted and the Judiciary avoided the embarrassment of Beijing intervention.
The judiciary claim it was balanced and reasoned on the circumstances alone, but only time will tell. Will they succumb the next time the Government wants their way and threatens the interpretation Joker card?
blue
Honestly this was a decent interpretation of the law. The Basic Law clearly states PR is available to ordinary residents. FDH are anything but ordinary.

As superdx plainly put it, FDH take a ton of shortcuts to work in HK. They are not entitled to PR.
Will.I.Am
No worries, they can always try Singapore instead! No? How about Malaysia? Or Taiwan? Or maybe Japan or Korea?
Failing they can always go back to Philipines, no loss at all.
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!
jjenno
Foreign Domestic Helpers are just that, FOREIGN domestic helpers. The difference between expat professionals and FDH is that professionals contribute to the local economy, they pay tax, club memberships, restaurants, furniture stores, property and hire FDHs.
FDHs on the other hand contribute negligible amounts to the local economy. They do not pay tax, or most consumer goods, on the contrary, they send most of their income back to their home country. Seems they want it all one way.
rease.92
First of all, they are HUMANS.
rease.92
With a monthly salary of HK$3,800 their annual salary is below the HK$120,000 threshold of taxpayers.
There is no other tax to be paid in HK.
Expats and rich chinese can only go to restaurants and clubs, when FDH take care of their children at home, do the shopping, cleaning, laundry, cooking, ironing.
Their rich lifestyle would not be possible without FDH.
rease.92
hahahaha
Without FDH, those expats and rich Chinese could not spend money in restaurants and clubs but would need to stay home. Do the laundry, cook, iron their shirts for next day and change the diapers for their children. And stay at their bedside when they get sick.
It is only the FDH that enables the rich lifestyle.
cnt123
Eman Villanueva talked about unfair treatment, what rubbish are you talking about. HK give FDW legal protection, much better than almost any other SE Asian country, and the right to challenge the HK gov. Lets not forget what this is really about, greed. Who would want to leave their homes and familiy if it wasn't for money. In HK the FDW can get at least 5x what they can earn in Philipines. Their contract states they must return home. Now that they tasted the good life, they want more. Well, the law tells you otherwise, and you retort to rubbish in justifing your action.
blue
I for one am sick of the whinging from some white liberal expats with regards to FDH. I think the reason they love throwing up that race card so much is that for once this doesn't involve "white guilt" and thus they have an opportunity to spread that guilty feeling to Chinese people too.

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