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Though the city’s top court upheld constitutionality of the long-running policy to deny permanent residency to foreign domestic helpers (FDHs), the government must look elsewhere to stop mainland babies born in Hong Kong from earning residency status
The two-year court battle, initiated by Filipino Evangeline Banao Vallejos, was brought to an end on Monday as the Court of Final Appeal (CFA) said her stay in Hong Kong as a domestic helper is too “far-removed from the true meaning of “ordinary residence, a condition in the Basic Law for the right of abode in Hong Kong.
The judgment acknowledged that it was implicit in the Basic Law that the “continuous seven-year period of ordinary residence can only be achieved subject to continuing immigration control.
Furthermore, conditions imposed by the city’s director of immigration on the entry of a non-Chinese person, as empowered by another Basic Law provision, will materially affect the nature and quality of his or her residence in Hong Kong.
The permission for entry of foreign maids, for instance, is tied to specific employers and an obligation to return home at the end of contracts. They were also told from the outset that their admission into Hong Kong was not for the purpose of settlement.
“It is clear, in our view, that these distinguishing features result in the residence of FDHs in Hong Kong being qualitatively so far-removed from what would traditionally be recognized as ‘ordinary residence’, the judgment wrote.
As a result, the government will refuse 1,067 applications filed by FDHs to verify their residency status. Decisions on these cases have been delayed since the appellant won her first and only victory at the High Court in 2011.
Though the government eventually won the case against the maids, it lost an opportunity to resolve another thorny problem as the CFA decided not to seek a judicial reference from the National People’s Congress (NPC) Standing Committee.
As the five CFA judges resolved the foreign maids’ appeal by using the Common Law approach, they said they found it “simply unnecessary to seek reference from the NPC Standing Committee.
Secretary for Justice Rimsky Yuen Kwok-keung said that the government has already drawn up “several alternate plans to resolve the baby loophole by working within the local legal framework, but he refused to disclose them given the ruling’s impact on such plans.
Though “legal avenues which are available within the local legal system remain the priority, Yuen did not expressly rule out the possibility of seeking interpretation directly from the NPC Standing Committee either. “We will only exhaust our means (within the local system) before we do anything (else), said Yuen.
Sringatin, a member of a domestic workers union,reduced into tears after losing the legal fight for residency. (Yahoo)
Secretary for Security Lai Tung-kwok said the government will continue to adopt “robust administrative measures to implement the zero-delivery quota policy for expectant mainland mothers, such as denying entry of pregnant visitors at border control.
