Walking a legal tightrope

Updated: 2011-08-17 07:52

(HK Edition)

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Hong Kong's Basic Law allows non-citizens to claim permanent residency if they have lived in the city for seven years continuously.

Hong Kong's Immigration Ordinance, however, specifically excludes the city's almost 300,000 foreign domestic helpers, mostly women from the Philippines and Indonesia, from this right.

It is this provision in the ordinance barring helpers from claiming permanent residency that will be challenged in three judicial reviews - one scheduled for next week and two more in October.

The first case, involving helper Evangeline Banao Vallejos who has lived in Hong Kong since 1986 and is said to have severed links with her native Philippines, is expected to set a precedent for similar cases.

Here are key four possible scenarios arising from next week's hearing and what they would mean:

Vallejos loses: High Court decides the Immigration Ordinance should remain unchanged and permanent residency should continue to be denied to foreign domestic helpers.Vallejos may challenge verdict in Court of Appeal and the Court of Final Appeal.

Vallejos wins: High Court rules in favor of Vallejos, paving the way for thousands of maids to apply for permanent residency, pending the outcome of any appeal by the government to the Court of Appeal and Court of Final Appeal. Applicants must, however, prove that they have a genuine intention to make Hong Kong their home. Having dependents, a home or businesses in the Philippines or elsewhere could weaken their case.

Vallejos wins but government changes rules: To avoid an influx of helpers and their families, the Hong Kong government limits employment contracts to three or less than two years, denying them the opportunity to stay in Hong Kong long enough to qualify for permanent residency. Alternatively, the government introduces an enforced "cooling-off period" between contracts when helpers must stay in their home country long enough to deny them qualification for permanent residency under the continuous residency requirement.

Vallejos wins but government seeks Beijing interpretation: The Hong Kong government seeks an interpretation of the Basic Law from Beijing on the Basic Law provision allowing foreigners to claim permanent residency after seven years. Depending on Beijing's interpretation, the move could overrule any High Court decision granting permanent residency.

(HK Edition 08/17/2011 page4)