The decision to refuse Comprehensive Social Security Assistance to a new immigrant who went on to successfully challenge government welfare rules in court was "an administrative anomaly", a former Social Welfare Department chief says.
The Court of Final Appeal on Tuesday ruled in favour of Kong Yunming's judicial review challenge to a rule denying welfare to residents who have lived in Hong Kong for less than seven years.
The ruling was welcomed by Stephen Fisher, director of social welfare from 2007 to 2009 and now director general of Oxfam Hong Kong. But he said Kong should never have had to go to court - and that the rule was not justifiable in the first place.
"[The director's discretionary power] is actually sufficient to handle these cases," Fisher said.
Fisher said a third of applications for CSSA from poor mainland immigrants were granted on a discretionary basis. More than 14,000 individuals or households are receiving discretionary CSSA.
Kong arrived from the mainland in 2005, but her Hong Kong husband died the next day and his public flat was reclaimed by the Housing Authority. Her application for CSSA was turned down the following year because she did not meet the residency requirement. She sought a judicial review in 2008, losing twice in lower courts before her victory in the top court last week.
The government adopted the seven-year rule in 2004 after the Census and Statistics Department predicted an influx of mainland visitors, Fisher said.
"The issue was a population policy one - about the quality of migrants. It should have been solved by population policies, not by tampering with welfare rights," Fisher said. "[The government of the time] only want educated and rich people to migrate to Hong Kong, which is not a legitimate or reasonable justification for any policy. It is social discrimination," Fisher said.
The top court agreed that the rule breached Article 36 of the Basic Law, which gives all residents the right to welfare.
Hongkongers must ask themselves who they want to include in their society, he said.
"A society has responsibility to take care of the most vulnerable - this is the social contract. But who do we count as a member of our society?" he said.
Some 150 immigrants from the mainland are allowed to reunite with their families and settle in Hong Kong every day.