Rodel Rodis
Article 24 of the Hong Kong Basic Law grants permanent residence to “Foreigners (persons not of Chinese nationality) who have lived in Hong Kong lawfully for 7 years and have taken Hong Kong as their permanent place of residence.” According to the unanimousMarch 25, 2013 ruling of Hong Kong’s Court of Final Appeal (CFA), the individuals and class not covered by this fundamental laware foreign domestic helpers (FDHs), specifically in the case before it, Filipino maids.
The landmark ruling that had “discriminatory” written all over it came in the case of Vallejos and Domingo v. Commissioner of Registration, a civil action brought against the government of Hong Kong by two Filipino domestic helpers seeking permanent residence and the right of abode in Hong Kong.
The plaintiffs, Evangeline Banao Vallejos and Daniel Domingo, have lived and worked in Hong Kong continuously since 1986. If they held any other job in Hong Kong, according to the court’s ruling, they would have qualified for permanent residence two decades ago.
Evangeline Vallejos felt compelled by economic circumstance to leave her husband and five children in a barrio near Urdaneta City, Pangasinan to seek work in HK in 1986 – at the time a British colony. Although she worked for various employers in her first years in HK, she has continuously worked for the family of Barry Ong for more than 25 years. The Ong family has supported her efforts to obtain “permanent residence”, a concept that was introduced in the law of the British territory in 1987, a law would allow persons not born in HK to gain the right of abode there.
In 1992, the Hong Kong Immigration Ordinance was amended to state in Article 2(4)(a) that “ordinarily resident” would not apply to people who had landed unlawfully or who had breached their limit of stay, or were refugees. On July 1, 1997, immediately after the transfer of HK sovereignty to China, the law was again amended to specifically exclude foreign domestic helpers.
In April of 2008, Evangeline, who said she hoped to one day retire in Hong Kong - after she succeeded in getting all of her children tograduate with college degrees because of her remittances - applied for permanent residence under Article 24 of the Hong Kong Basic Law. Her application was denied because of the 1997 exclusion of FHDs.
After her various administrative appeals failed, Evangeline sought the assistance of barristers Mark Daly and Gladys Li, a founding member of Hong Kong’s Civic Party, to apply for judicial review to determine whether the relevant provision in the Immigration Ordinance excluding foreign domestic helpers complied with the Basic Law.
The hearing on Evangeline’s case before Judge Johnson Lam of the Court of First Instance of the High Court (CFI) began on August 22, 2011, and lasted three days. The heavy media attention on the case caused the courtroom to be jam packed. Hundreds more watched the proceedings on a large screen television in the lobby even as demonstrators for and opposed to Evangeline faced off outside the courthouse.
Most of Hong Kong’s establishment, including management and labor, lined up against Evangeline and the FDHs. The Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) warned that 125,000 FDHs would each sponsor an average of three dependents to come to Hong Kong, meaning a total of 500,000 persons newly eligible for government programs such as public education, housing subsidies, and Comprehensive Social Security Assistance, leading to tens of billions of dollars in additional public expenditures.
In its August 1, 2011 editorial (“HK and Anti-Filipino Sentiment”), the Asia Sentinel wrote:
“The Philippines can always be relied upon to be a butt of derision in Hong Kong…. But the pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB), an arm of the Communist Party and the territory’s largest party, has taken anti-Filipino sentiment to new levels. In an attempt to present itself as the party of the common man and to divert attention from other grassroots issues, the DAB has launched a scare campaign suggesting that Hong Kong is in danger of being flooded with Philippine migrants, creating a huge rise in local unemployment and costing billions in welfare payments.”
But DAB was not alone. The Hong Kong Federation of Trade Unions (FTU) representatives expressed concern that increasing the labor supply by giving FDHs the freedom to pursue other employment would put other HK workers at a disadvantage. They collected 91,500 signatures in 18 electoral districts opposing the granting of the right of abode to FDHs.
The Hong Kong Human Rights Monitor questioned the DAB's expenditure figures, describing them as "scare tactics" similar to the DAB’s campaign of opposition to residence rights for mainland children.
Civic Party chairman Alan Leong challenged the assumption that maids could qualify for permanent residence even if Evangeline won her case, noting that the Immigration Department required applicants for permanent residence to sign a declaration that, among other things, they had "sufficient means of income to support myself and my family in Hong Kong without assistance".
The Civic Party had been a political force in Hong Kong district elections but the issue of the FDHs caused it to lose support from voters. Its opponents linked Evangeline’s lawyer, Gladys Li, to the Civic Party which, according to their political ads, “is helping foreign maids to fight their residence case" which, they said, would lead to massive increases in population and public expenditures. , An editorial in the influential Wen Wei Po journal accused the Civic Party of being "an enemy of the people" for their support of FDHs. Voters’ perceptions that Civic Party candidates supported Filipino maids led to their dismal showing in the November 2011 district councils elections.[
On September 30, 2011, Judge Lam ruled in Evangeline’s favor finding that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law. In effect, it was unconstitutional.
Shortly after the ruling, the HK government filed an appeal asserting that Lam erred in finding that FDHs' residence in Hong Kong could not be regarded as "out of the ordinary", in finding that the government's right to apply immigration control under Basic Law Article 154 could not be applied to FDHs.
The appeal to the High Court was heard on February 21-23, 2012. The government argued that the previous British administration's treatment of Vietnamese refugees in Hong Kong in the 1980s should be followed as a precedent and cited the previous British colonial adminsitration's ruling that time spent in HK on a student visa was not regarded as "ordinary residence" and did not count towards the time required to obtain indefinite leave to remain.
Gladys Li countered by informing the High Court that Vietnamese refugees were not given identity cards and had to live in government-specified refugee centers and did not fall within the definition of "ordinarily resident". The case of Vietnamese refugees had value as a precedent, she said, since the British colonial government could enact any law without limitation while the Hong Kong government today is bound by the Basic Law.
On March 28, 2012, the High Court of Appeal issued a ruling which overturned the Lam decision finding that Immigration Ordinance 2(4) does not violate the Basic Law.
The lawyers for the FDHs appeal the decision to the Court of Final Appeal (CFA) which heard the case on February 26, 2013, in a hearing that lasted three days.
Vallejos and Domingo's appeal came before the CFA on 26 February 2013, in a hearing that would last for three days. The lawyer for the FDHs challenged the constitutionality of the use of a "blanket exclusion" to prevent all people belonging to certain classes of residents from falling within the definition of "ordinarily resident" and thus eventually becoming entitled to apply for right of abode.
The lawyer for the HK government asserted that foreign domestic helpers "don't form part of the permanent population" and thus it was legitimate for lawmakers to create a legislative definition of "ordinarily resident" which excluded them.
On March 25, 2013, the CFA ruled in favor of the HK government by finding that the restrictions on FDH's residence and employment in Hong Kong meant that they did not fall within the definition of "ordinarily resident" for immigration purposes. Justice Ma wrote in his ruling that foreign domestic helpers are "told from the outset that admission is not for the purposes of settlement."
"Today is a very sad day for migrant workers in Hong Kong," declared Eman Villanueva, the head of United Filipinos, a Filipino advocacy group in Hong Kong. "The Court gave its judicial seal to unfair treatment and the social exclusion of foreign domestic helpers in Hong Kong."
In its March 27, 2013 Editorial (“Discriminatory”), the Philippine Daily Inquirer observed: “Whatever the reason, the final ruling sent an unmistakable message to foreign domestic helpers in Hong Kong:You may work for us, you may serve us loyally, faithfully, for years on end, but you will never be part of us.”
(Send comments to Rodel50@gmail.com or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800).
No comments:
Post a Comment