Government appeals maids abode ruling – Ruling Regarding Domestic Helpers

South China Morning Post

The government on Tuesday began its bid to overturn a landmark court ruling that gives foreign domestic helpers the controversial right to apply for permanent residence in Hong Kong.
In the Court of Appeal, lawyers for the government argued that Mr Justice Johnson Lam Man-hon erred in three point of law when he found that immigration law was unconstitutional in denying domestic helpers the right to settle in the city after seven years of uninterrupted residency. Lam made the ruling last September in the High Court.

Lam found that the law was inconsistent with the Basic Law because it excluded foreign domestic helpers from being “ordinarily residents”.

David Pannick, QC, for the government, said the ruling had grave consequences for social, economic and immigration aspects of Hong Kong.

But Gladys Li, SC, for domestic helper Evangeline Banao Vallejos, said the arguments submitted by the government undermined the rule of law and was “unconstitutional manipulation of the individual’s status”, the court heard.

Pannick said the judge should have ruled in September that it was the intention of Basic Law drafters to give the legislature power to define the meaning of the ambiguous term “ordinarily resident” – to describe helpers’ residence in the city – taking into account the social, economic and immigration factors at different times.

The appeal arises from a judicial review sought by Vallejos, a Philippine domestic helper, who has been working in Hong Kong since 1986.

Vallejos’ application for a permanent identity card was rejected by the Commissioner of Registration in November 2008.

She appealed to the Registration of Persons Tribunal, which dismissed her appeal in June 2010. The tribunal found that Vallejos had satisfied the criteria, but ruled she was not recognised as an “ordinarily resident” under immigration law.

Pannick said the legislature had some discretion in defining the meaning of ordinarily resident, a privilege it has exercised since before the Basic Law was enacted.

For example in 1982, he noted, the legislature exercised its power to decide that Vietnamese refugees were not “ordinarily” residents of Hong Kong, and were not entitled to permanent residence.

Judge Lam, Pannick said, failed to note that the terms of residency of foreign domestic helpers in Hong Kong are “out of the ordinary”. Their entry to Hong Kong was subject to conditions – as it is for refugees, prisoners, Gurkhas and others – he said.

Beijing and Britain had agreed that foreign domestic helpers should not be regarded as “ordinarily resident”, as shown in external materials from before and after the enactment of the Basic Law in 1990, Pannick argued.

At the end of 2010, there were 285,000 foreign domestic helpers in Hong Kong, the court heard. About 117,000 of them, who had lived in Hong Kong for seven years or more, might be entitled to permanent residence if the unconstitutionality ruling were upheld.

The appeal is expected to last for three days before Chief Judge of the High Court Andrew Cheung Kui-nung and two vice-presidents of the Court of Appeal, Mr Justice Robert Tang Ching and Mr Justice Frank Stock.