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  • Oct 21, 2014
  • Updated: 9:53pm
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Top court dismisses seven-year residency requirement for CSSA benefits

Top court says denial of social security to new immigrants is unconstitutional, possibly adding an extra HK$750m to city's annual CSSA bill

PUBLISHED : Tuesday, 17 December, 2013, 11:43am
UPDATED : Wednesday, 18 December, 2013, 11:59pm
 

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18 Dec 2013
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Hong Kong's top court has declared it unconstitutional to deny social security to new immigrants.

The unanimous Court of Final Appeal ruling means new arrivals will no longer be required to live in the city for at least seven years before they can apply for Comprehensive Social Security Assistance (CSSA) benefits.

Ho Hei-wah, director of the Society for Community Organisation, said the ruling may lead to an annual increase of 5,000 to 7,000 applications from new immigrants.

It could add HK$750 million annually - an increase of 3.5 per cent - to the CSSA bill.

Secretary for Justice Rimsky Yuen Kwok-keung ruled out any suggestion the government would ask Beijing for an interpretation of the Basic Law.

"Rest assured, we will not be taking any unnecessary steps in this regard," Yuen said. "We will respect the judgment, so don't worry."

Matthew Cheung Kin-chung, the secretary for labour and welfare, said the government would now reinstate a one-year residency requirement.

Chief Executive Leung Chun-ying said government departments had already started assessing the ruling's impact on the CSSA system and other policies.

Chief Justice Geoffrey Ma Tao-li, Mr Justice Roberto Ribeiro, Mr Justice Robert Tang Ching, Mr Justice Kemal Bokhary and Lord Justice Phillips handed down the judgment and unanimously allowed the appeal launched by new immigrant Kong Yunming.

The top court ruled that the seven-year residency rule breached Article 36 of the Basic Law, which says every citizen has a right to social welfare benefits under the CSSA scheme.

The policy conflicted with the one-way permit policy designed to promote family reunions in Hong Kong and the population policy aimed at rejuvenating the ageing population, the court said.

The government's explanation that the seven-year policy was intended to save money and ensure the sustainability of the social security system was not reasonable, the court stated.

Kong, 64, who started the judicial review process in 2008 when she was a homeless new immigrant, said: "It's not exactly joy. But it's more like closure for me … and hope."

Kong's appeal was dismissed twice before it was brought to the Court of Final Appeal last month.

Ho, whose SoCo organisation has supported Kong, said the ruling was a "win for the whole of Hong Kong" on welfare rights.

He added that the financial burden on the government would not be large.

"It must be known that apart from the residency requirement, there are many other requirements for CSSA," said Ho.

He said single-parent families with mothers waiting to fulfil the residency requirement would gain the most benefits.

The government has spent HK$19.7 billion on CSSA in the past year. Last month there were 261,289 CSSA cases, 9,573 involving new immigrant family members.

The seven-year residency requirement targeting new mainland immigrants was implemented in 2004.

Additional reporting by Jeffie Lam

 

Read the Court of Final Appeals press summary here.

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18

This article is now closed to comments

Camel
There you see how educaded our lawmakers actually are. Not knowing at all their own Basic Law.
They just introduce laws and regulation without checking whether they are conform with the constituition. For what are you getting your money?????
cheechee129
I will respect the judge by the court as it is prescibed in the Basic Law that all residents including permanent and non permanent should be protected by welfare benefit. Regrettably, it may deepen the mainland-Hong Kong conflict. Those middle-income groups in Hong Kong who pay heavy tax and spend part of their income to pay their mortages are also the group can hardly enjoy any social benefit, while those coming from the mainland makes no contribution to the city can just receive government assistance.
hkqx
Thank editor Blue for clarification.
Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.
".. law" in different situation different law.
chuchu59
On a brighter note I am pleased to note that the Secretary for Justice has said it will respect the judgment and will not ask Beijing for an interpretation of the Basic Law. Right now, the Labour Bureau officials need to think of a solution fast as the payments will take a heavy toll on HK and is clearly unsustainable.
caractacus
Yes, what a relief.
lexishk
Thank you blue for explaining what the SCMP reporters were unable to understand. Very poor form SCMP, particularly on an issue which is liable to spur racist outrage from some quarters (anyone who would argue against, think back to the foreign domestic helpers case).
On another note, the Secretary for Justice says an NPCSC interpretation won't be sought: "We will respect the judgment, so don't worry." Any decent journalist would rake him over the coals for that admission that CFA judgments previously referred were not respected.
blue
"That's why a new "Hong Kong Identity Card Holder with 3* right of abode low-income Assistance" as well as a social welfare allowance of a small amount for all other residents should be introduced!"

Hmm I guess that could work. But you shouldn't limit it to 3 star HKID card holders. It should be available to all permanent residents.
sudo rm -f cy
Do not blame the CFA. The problem lies in the Basic Law itself. Unfortunately, only the NPCSC can change it, and does anyone truly believe they have our best interests in mind?
blue
You guys are all wrong. They court didn't make any mistake here. The basic law doesn't say citizen. The SCMP is so incompetent, they can't even quote a constitutional article correctly.

"Article 36
Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law. "

Based on this article any resident, whether they have Permanent Residency or not, qualifies for social welfare. Even an expat down on their luck can now apply for CSSA.

Restricting CSSA to 3 star ID card holders won't work because it breaches article 36 of the Basic Law which plainly says EVERY RESIDENT is entitled to social welfare.
newyorkgirl
Thank you blue for the correction. SCMP editor pay blue for doing your work! Julie Chu, laws must be verbatim, you cannot use your own wording!! Didn't you learn this in school?

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