Two Filipino mothers lose final legal bid to stay in Hong Kong with their children
- City’s top court dismisses appeal by former domestic workers Milagros Tecson Comilang and Desiree Rante Luis
- Both women have children who are Hong Kong permanent residents; they have been fighting to remain in the city since 2011 and 2014
Two Filipino mothers will be forced to part with their children in Hong Kong after the top court dismissed their appeal against a government decision denying them the right to stay in the city, despite each having a child who is a permanent resident.
On Thursday, the Court of Final Appeal handed down its judgment on the cases of former domestic workers Milagros Tecson Comilang and Desiree Rante Luis. They had been battling to remain in the city since 2011 and 2014 respectively.
The court stated that if a person with no right to enter and remain in Hong Kong was able to overcome that position by relying on someone else’s right, it would upset the purpose of immigration reservation in the Bill of Rights and the city’s mini-constitution, the Basic Law.
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The director of immigration was not duty-bound to take into account the various rights the appellants relied upon when exercising his discretion to refuse to let the mothers stay, the judgment said.
“There is no rule of law deficit in the context of this case or otherwise. The director does not enjoy an unfettered discretion in making immigration decisions,” it stated.
“On the contrary, as the jurisprudence of the Hong Kong courts amply demonstrates, the director’s exercise of discretion is subject to review.”
The director does not enjoy an unfettered discretion in making immigration decisions
Comilang came to the city as a domestic worker in 1997. Three days before her employment contract ended in 2005, she married a Pakistani man, a Hong Kong permanent resident. In 2006, she gave birth to a daughter, Zahrah Ahmed.
Comilang applied to the department for a change of status to enable her to stay as her husband’s dependant. But her husband withdrew his support in 2007.
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Luis came to the city as a domestic worker in 1991. She married her Filipino husband, also a domestic worker, in 1997. Her sons, David John Rante, 17, Carl Benz Rante, 15, Mark Joelry Rante, 10, were all born in Hong Kong and stayed as dependants of their father.
After Luis’ employment ended in 2006, she kept returning to the city as a visitor. Both Carl and Mark suffer from medical conditions, with Carl suffering from heart disease. David has already obtained his permanent residency.
Domestic workers’ children who are born in Hong Kong do not obtain permanent residency by birth. Whether they qualify for the status after having lived in the city for some years is a complicated matter. According to Pathfinders, an NGO that assists them, children stand a higher chance of securing permanent residency if their parents’ employers promise in writing to support the children if the parents are out of work.
Both Luis and Comilang said in an interview they were at a loss for what to do.
“I cannot leave my children behind,” Luis said. “For my sons, Hong Kong is their home. I am not asking the government for money. I just want to stay and take care of my sons.”
Comilang and her husband have divorced, leaving no one to take care of her daughter. Luis’ husband has to work as a domestic helper and so does not have the time to care for the children.
The two mothers argued that the director of immigration had failed to take into account a series of rights under the Basic Law and international treaties such as the International Covenant on Civil and Political Rights. The children asserted that the rights they themselves were entitled to meant their mothers should be allowed to stay and take care of them.
The court looked at whether the director was obliged to take into account the parent-and-child families’ enjoyment of rights. It also considered whether the immigration reservation under the Bill of Rights exempted the director from having to take into account the rights of a child protected under the Basic Law.
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The court eventually decided that because the mothers did not have the right to enter and remain in the city, they could not rely on the rights under the Bill of Rights or the Basic Law.
“As a matter of purpose, we accept the director’s submission that it would frustrate the evident purpose of [Bill of Rights’ Section 11 and Basic Law Article 39] if a person who has no right to enter and remain is able to circumvent that position by saying ‘I’m relying on someone else’s rights’,” the judgment said.
The appeal was dismissed unanimously by the five judges in the top court.
The Court of Final Appeal has chosen to prioritise the encoding of xenophobia in the Basic Law over protection of even their own children
Daly & Associates, the law firm representing the appellants, said the families were very disappointed.
“The Court of Final Appeal’s judgment should chill all foreign individuals living in Hong Kong as the Court of Final Appeal has chosen to prioritise the encoding of xenophobia in the Basic Law over protection of even their own children,” the firm said in a statement.
“The judgment has failed to prioritise the very foundation of life – the relationship between a parent and child – and the sanctity and security that comes with knowing that this relationship is protected.”
The firm added that the court had deviated from international human rights norms.
“The court seems to acknowledge that [Hong Kong] did and still does subordinate all human rights to the need for strict immigration control to the point of exclusion of any consideration,” it said.
