Challenge to ban on refugees' right to work dismissed by top court

Judgment against three refugees and a torture victim seeking jobs after four years in the city hits Hong Kong's reputation, warn campaigners

PUBLISHED : Tuesday, 18 February, 2014, 12:34pm
UPDATED : Wednesday, 19 February, 2014, 3:53am

Hong Kong's top court yesterday unanimously dismissed a case brought by three refugees and a torture claimant seeking the right to work in the city.

The decision by the Court of Final Appeal on an attempt by three refugees and a recognised torture claimant to overturn a government ban on their employment was described by their lawyer, Mark Daly, as "an embarrassment for Hong Kong's justice system".

The four say they fled their home countries to escape political and religious persecution.

The decision is a blow to thousands of asylum seekers and other protection claimants living on social welfare stipends.

The judges ruled that the four had no right constitutionally or under common law to work in Hong Kong.

But they said there was a strong case to suggest "prolonged prohibition" on employment would amount to inhuman or degrading treatment.

One of the applicants, a man from Burundi identified in court as Mr GA, said: "It's frustrating that Immigration is involved in and controls all aspects of my life."

The case was based on the applicants' right to be protected from cruel, inhuman or degrading treatment or punishment under the Hong Kong Bill of Rights; their right to privacy under the same bill; the freedom of choice of occupation under the Basic Law; and the right to work under the International Covenant on Economic, Social and Cultural Rights and the protection of fundamental rights allowed by common law.

The top court said the Basic Law gave the right to choose an occupation but not a right to work. A blanket ban on the right to employment is imposed on asylum seekers, refugees and torture claimants.

The Immigration Ordinance states that they "must not take any employment, whether paid or unpaid, or establish or join in any business".

The group argued in the Court of Final Appeal that those who have lived in the city for four years or more should be allowed to take up jobs.

While a temporary work permit may be issued at the behest of the Director of Immigration on a discretionary basis, this rarely happens. The judgment noted that three of the four applicants had successfully obtained permission from the Director of Immigration to work, but their permits would expire this year.

Aleta Miller, executive director of the Hong Kong Refugee Advice Centre, described the judgment as a disappointing setback for Hong Kong's reputation for respecting human rights.

"By denying refugees and torture claimants the right to work, the Hong Kong government is forcing them into poverty and inactivity," she said.

The Security Bureau welcomed the judgment.

"The administration has been acting and will continue to act in accordance with the law in a fair and reasonable manner," a spokeswoman said.