The Court of Appeal should not take into account social and economic factors when interpreting whether the Basic Law recognises the right of foreign domestic helpers to apply for permanent residency, a court heard yesterday.
Lawyers for Evangeline Banao Vallejos - a Filipino who has lived in Hong Kong for 25 years - put forward the proposition as they defended an appeal bid brought by the government to overturn a right of abode ruling in favour of maids.
On Tuesday, the government argued that the drafters of the Basic Law must have intended to give lawmakers power to decide who was eligible to permanently settle in Hong Kong as permanent residence was a 'valuable status' affecting a person's social, economic and immigration standing in the city.
In the Court of First Instance in September, Judge Johnson Lam Man-hon ruled in favour of Vallejos. He found that the immigration provision was unconstitutional because it excluded domestic helpers from being 'ordinarily resident'.
The appeal was spurred by fears that if the ruling stands there will be an influx of immigrants who would strain the welfare system.
The government filed statistics showing that at the end of 2010 there were 285,000 such workers in Hong Kong. About 117,000 had lived in the city for at least seven years and might be entitled to be a permanent resident if the ruling were upheld.
But Gladys Li SC, for Vallejos, cited statistics expert Paul Yip Siu-fai as saying the government figures had no basis. She said the legislature did not have the power to make laws to decide which category of people were entitled to permanent residency or to impose immigration controls after the Basic Law was enacted in July 1997. 'It would be ridiculous to interpret [the Basic Law] by referring to the [immigration provision],' Li said. 'A stream cannot rise higher than its source.'
Legco was not empowered to amend the Basic Law, she said. The Basic Law could have provided that the legislature was empowered to add to or amend the categories of people entitled to be permanent residents, but it did not do so.
Li also said Lam was correct in determining whether a person was ordinarily resident. Citing legal authorities, she said the test was whether a person had adopted a place voluntarily and settled there as part of their life. She said it was clear that domestic helpers came to Hong Kong voluntarily and conditions attached to their stay were irrelevant as the Basic Law made no reference to them.
She also said it would not be right to exclude foreign domestic helpers when other imported workers would be able to acquire the ordinarily resident status. The situation of domestic helpers was unlike that of refugees who entered Hong Kong not to settle here, but to resettle in other places.
Mr Justice Frank Stock, one of the three judges hearing the appeal, questioned how domestic helpers could satisfy the seven-year continuous residence requirement given that they were required to leave Hong Kong every two years despite successfully renewing job contracts.
Mr Justice Robert Tang Ching also asked how the 'enforced absence' was different from 'enforced presence' - as in the case of prisoners whose stay in Hong Kong could not be regarded as ordinarily resident.
The appeal continues today.