A welfare policy that restricts payments to people who have lived in Hong Kong for seven years does not violate the Basic Law or the Bill of Rights, the Court of Appeal ruled yesterday.
But it was unconstitutional for the government to require residents to have lived in the city for one year continuously before they could apply for the dole, the court said, upholding a lower court's judgment.
In the first case, Mr Justice Johnson Lam Man-hon said although the Basic Law stated all Hong Kong residents shall be equal before the law, it did not mean all shall be treated equally in terms of entitlement to welfare benefits.
'An appropriate residence requirement, like a means test, serves to identify the relevant group of residents who could receive social welfare benefit by the way of [Comprehensive Social Security Assistance],' Lam wrote in his judgment.
He dismissed an appeal brought by a mainland immigrant that it was unlawful for the government to deny her welfare because she had not lived in the city for seven years.
Kong Yunming, 61, arrived on a one-way permit in December 2005 and applied for CSSA the following March, but was unsuccessful. She said the residence requirement was highly discriminatory because the Basic Law did not distinguish permanent residents from non-permanent residents when it stated all residents enjoyed the right to social welfare.
Kong, who was supported by the Society for Community Organisation, is considering taking the case to the top court.
Meanwhile, the government lost its bid to overturn a June 2010 ruling that Hong Kong residents did not have to live in the city almost continuously for a year before they could apply for welfare.
The court upheld the judgment that the continuous-residence rule, which had a grace period of 56 days during which a dole applicant might be away, violated the Basic Law, the Bill of Rights and a person's right to travel, and that it was unconstitutional and unlawful.
The judgment stemmed from a judicial review lodged by Hong Kong permanent resident George Yao Man-fai, 65, who had worked on the mainland for a textile manufacturer. Yao was denied CSSA when he returned to the city after being fired.
The government had argued that the one-year residence requirement was designed to exclude those who had lived outside Hong Kong 'for a long time' because they had made less of a contribution and had a weaker connection with to the city.
The court ruled that the one-year residence requirement was unreasonable.
Mr Justice Frank Stock cast doubt on what should be considered 'a long time' away. 'A person who leaves a meeting for half an hour may be said to have been away from the meeting for a long time,' Stock said.
'A person who lives in a region for seven years or more and then goes away ... for a total of 57 or 70 or 90 days cannot reasonably be described as someone who has, for that reason, 'lived outside Hong Kong for a long time'.'
But he said the number of such applicants excluded by the requirement appeared to have been small.
The maximum number of days that a welfare applicant could be away under the continuous-residence rule