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Joyce Man

Martin Wong

Hongkongers will no longer have to live continuously in the city for a year before applying for the dole.
A court ruled yesterday that the requirement was unconstitutional.
The Social Welfare Department immediately shelved the requirement for all applications for comprehensive social security assistance (CSSA).
The Court of First Instance made the ruling in the case of George Yao Man-fai, 65, a Hongkonger working on the mainland for a textile manufacturer. When he returned to Hong Kong after being fired, Yao was denied CSSA because he did not satisfy the requirement.
Yao challenged the Social Welfare Department's decision to deny him CSSA, saying it undermined a resident's freedom to travel and choose his or her occupation and violated the Basic Law, which guarantees the right to social welfare. Yesterday, the court ruled in his favour.
Tsoi Yiu-cheong,  a community organiser with the Society for Community Organisation,  which supported Yao's judicial challenge, said, 'It violated the Bill of Rights.  We're very happy that we've got justice. This allows many people who genuinely need CSSA to get welfare fairly.'
Yao, who had been living off his savings and the kindness of his friends, said: 'Life was bad before. Now that I can get welfare payments, it will be better.'
The government introduced the requirement in January 2004 to discourage people who had lived abroad for a long time from relying on CSSA immediately after returning. The rule came into effect at the same time as one requiring that a person be in Hong Kong for seven years before becoming eligible for CSSA.
The court ruled that the continuous-residence rule, which had a grace period of 56 days during which an 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. 
Mr Justice Andrew Cheung Kui-nung  said, 'It is fair to say that one simply does not find any detailed analysis, data or statistical figures to back any suggestion that there was, at the time the new rule was introduced, a genuine need to discourage people.' He said it was unacceptable to determine a resident's entitlement to CSSA by reference to the length of his absence from Hong Kong immediately before applying for CSSA, without inquiring into the reasons for and circumstances of his absence.
Statistics showed that residents who turned to CSSA immediately after returning from a long stay abroad were a minor proportion of all applicants. They could not have caused a significant strain on available resources, the judge said. He said many who had not been away for a long time were caught by the rule.
Ng Wai-tung, another community organiser with the grass-roots concern group, said many Hong Kong people who worked on the mainland had been forced to return with 'only a few pennies in their pockets' in the tough economic environment of the past few years.
Census and Statistics Department data shows the number of Hong Kong people working on the mainland fell from a peak of 237,000 in the first quarter of 2005 to 218,000 in the third quarter of 2008.
'In a survey we conducted last year, out of 116 homeless people, 37 said they had been working on the mainland and could not apply for the dole because of such unreasonable regulations. We are so happy about the court ruling, which gives back the rights these people are entitled to in the very first place,' Ng said.
'Offering poor people financial assistance when they badly need it is the responsibility of government. The government should not deny the rights of people that are protected under the Basic Law and international conventions,' he said.
A spokesman for the department said that between June 2007 and March this year, it exercised its discretion in approving CSSA for 4,839 applicants who had not continuously lived in the city for a year. 
The department will now inform 130 applicants who had been rejected about the change in policy.




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