Govt lawyer argues maids, convicts, diplomats and military personnel not entitled to residency

Foreign domestic helpers are among a small group of foreign nationals specifically excluded from acquiring the right of abode in Hong Kong while they reside in the city, a government lawyer told a judicial review on Tuesday.

The other excluded groups include prisoners, diplomatic staff and military officers, said David Pannick.

He was speaking on the second day of a judicial review sought by Evangeline Banao Vallejos, a foreign domestic worker who has resided in the city since 1986 and is now seeking permanent right of abode.

The Immigration Ordinance explicitly excludes domestic helpers employed from outside Hong Kong because their employment here is not considered to be "ordinary residency", Pannick argued.

The Legislative Council exercises the right to provide guidance to the interpretation of Article 24(2)(4) of the Basic Law as to whether the residency of foreign domestic helpers here is "ordinary" or "extraordinary", he said.

Other jurisdictions exercise the same discretion over their own immigration laws. The restriction stated in Section 2(4)(a)(vi) of the Immigration Ordinance is constitutional, Pannick said.

The applicant in the judicial review seeks to reverse the government's rejection of permanent residency applications by foreign domestic helpers.

The hearing before Justice Johnson Lam of the Court of First Instance was in its second day.

On Monday, Gladys Li, counsel for the applicant, said foreign domestic helpers fulfill the criteria for permanent residency spelled out in Article 24(2)(4) of the Basic Law. That is, they have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their permanent place of residence.

The Basic Law makes no further reference to foreign domestic helpers, Li argued, and any provisions restricting their rights are therefore unconstitutional.

Pannick during his presentation disputed Li's argument, saying that since the Basic Law sets out only general principles, it should be read in the constitutional context as a whole and should not be read in isolation.

The legislature, Pannick contended, has the power to define and refine the law.

Pannick referred to the pre-1997 Sino-British Joint Declaration that reflected the intention of both governments to implement additional legislative proposals meant to provide a definition of permanent residency.

He quoted a ruling by the Court of Final Appeal in 2001 stating that inmates are not treated as "ordinarily residing" in Hong Kong.

The government lawyer argued the ruling applies to foreign domestic helpers as well.

Li claimed that the foreign domestic helpers are denied fair treatment, citing Article 25 of the Basic Law, which stipulates that all residents shall be equal before the law.

Li contended that Pannick's argument that the Hong Kong government has the authority to impose immigration controls pursuant to Article 154(2) of the Basic Law was irrelevant. She asked the judge to ignore the argument.

Two days were set aside for the hearing initially, but Li, with the judge's permission, will continue her submission on Wednesday morning.

joseph@chinadailyhk.com

China Daily

(HK Edition 08/24/2011 page1)