HK court rules: Foreign maids entitled to resident status

HONG KONG – A Filipina domestic helper yesterday won her petition for residency rights in a landmark court ruling for thousands of foreign domestic helpers in the territory.

The court ruled that Evangeline Vallejos, who has been working as a domestic helper in Hong Kong since 1986, should be allowed to apply for right of abode on the basis of the Basic Law.

The Court of First Instance ruled that the Immigration Ordinance’s provision excluding foreign domestic helpers from the category of ordinary residents is “inconsistent” with the Basic Law, the city’s mini constitution.

Justice Johnson Lam Man-hon said that in excluding foreign maids as a class from the benefit of the constitutional right to permanent residency, the Immigration Ordinance “derogates instead of clarifies” the meaning of the Basic Law.

“My conclusion is that on the common law interpretation approach the impugned provision is inconsistent with (Hong Kong’s Basic Law),” Lam said in his 78-page decision. “The mere maintenance of (a) link with her country of origin does not mean that (a maid) is not ordinarily resident in Hong Kong.”

The Basic Law states that the permanent residents include “persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence.”

The Immigration Ordinance, on the other hand, states that “a person shall not be treated as ordinarily resident in Hong Kong… while employed as a domestic helper who is from outside Hong Kong.” 

Disappointment, relief

Chief Executive Donald Tsang expressed disappointment over the ruling. “I am personally disappointed by the judgment, but have not read it in full yet. My colleagues are studying the judgment. One thing is quite clear: we are fully prepared for an adverse judgment at this stage, and for that reason we would be doing what we need to do,” Tsang said.

A pro-government political party has warned there would be an influx of as many as 500,000 people – including children and spouses of foreign maids – that would cost HK$25 billion ($3.2 billion) in social welfare spending.

The Democratic Alliance for the Betterment and Progress of Hong Kong forecast unemployment could jump from the current 3.5 percent to 10 percent.

The government has declined to say how many maids would currently be eligible to apply for permanent residency.

Outside the court, Vallejos’ lawyer Mark Daly told reporters that they are not resting on their initial victory since the government could appeal the ruling to the Court of Appeals and more likely to the Court of Final Appeal.

“It’s probably the case that the case will go further. But we’ll wait and see… We’re not worried about it. It’s the natural course of litigation,” he said. “We spoke to Vallejos – she said she thanks God and all the people who have helped her, including her employer and her lawyers,” he said. “She is busy working so she has no time to be here today.”

Last Aug. 23, government counsel Lord Pannick argued in court that the foreign domestic workers who are admitted into the city under a two-year employment contract are subject to certain conditions that are not imposed on other foreign workers who may apply for permanent residency.

Pannick explained that these “extraordinary conditions” include living in their employer’s house, restriction against bringing dependents, and returning to their place of origin at the end of their contract to maintain links with their home country.

Lam explained that foreign domestic workers are entitled to weekly rest days and statutory holidays, during which they could “enjoy other aspects of life which other Hong Kong residents could enjoy during their spare time.”

Another court hearing will be held on Oct. 26 on whether Vallejos can now be declared a permanent resident.

Daly said yesterday’s ruling effectively sets the tone for two similar petitions of three other Filipino domestic helpers.

“The hearings on the 18th and 26th have facts and legal issues unique to them. But this case, the overriding unconstitutionality of the provision – this affects all the cases,” Daly said.

Irene Domingo and her husband Daniel, and Josephine Gutierrez and her son, had also asked the court to declare them as permanent residents under the Basic Law. The Court of First Instance will hear their petitions on Oct. 18 and 26, respectively.

‘A step forward’

Vice President Jejomar Binay, presidential adviser on overseas Filipino workers (OFWs) concerns, called the ruling “a step forward in recognizing the rights of migrants.” He said OFWs and other migrant workers in Hong Kong deserve recognition for their role in propping up the territory’s economy.

“OFWs have contributed to the economy of their host countries and the decision recognizes their contributions,” Binay said.

Binay said Vallejos has been working as a domestic worker in Hong Kong since 1986 but only applied for residency status in 2008.

He said Vallejos would have easily won permanent residency after seven years in the territory had she been a professional worker such as a banker or a teacher.

“Permanent residency in Hong Kong means a person can remain in the territory indefinitely, and they cannot be deported, according to the Basic Law. They also win the right to vote and to stand in elections,” Binay said.

“However, a separate ordinance in the law stated that domestic helpers are excluded from this right,” he added.

“The judgment only proves what we have been saying all along – that the policy of the Immigration denying the rights of foreign domestic workers is unconstitutional and also discriminatory towards foreign domestic workers,” Asian Migrants Coordinating Body (AMCB) spokesperson Eman Villanueva said. Villanueva also leads the United Filipinos in Hong Kong or UNIFIL.

“We would also like to call on the Hong Kong government not to continue its threat of making some administrative policies that will limit the stay of foreign domestic workers in Hong Kong to only four or six years. This will go against the spirit of the court’s ruling today,” he added.

“This is a big victory over injustice and discrimination perpetrated by Hong Kong against foreign domestic workers,” Villanueva said.

Scenarios

In case the foreign domestic helpers win their legal battle up to the Court of Final Appeal, the government holds the option of limiting them to three two-year employment contracts to effectively limit their stay to only six years.

The case could also have implications beyond Hong Kong for other Asian economies that rely on cheap imported labor for cooking, cleaning and care of the young and elderly.

Foreign maids in Hong Kong are entitled to better working conditions than in other parts of Asia – they are guaranteed one day off a week, paid sick leave, and a minimum wage of HK$3,740 ($480) a month.

But rights groups say they still face general discrimination and a lack of legal protection. A maid’s visa is tied to a specific employer, leaving her vulnerable to domestic abuse, the activists say.

Without the right to permanent residency, if dismissed by her employer she must find another job in domestic service or leave Hong Kong within two weeks.

As of December last year, there were 285,681 foreign domestic helpers in Hong Kong. Of this figure, around 117,000 have been continuously working in the former British colony for more than seven years.

Data from the Immigration Department showed that there are 138,933 Filipino domestic workers as of June this year, accounting for 47.5 percent of the total foreign domestic helper population of 292,473.

Filipinos continue to trail their Indonesian counterparts numbering 146,248 as of June, accounting for 50 percent of the total.

But thousands of Filipinos have been working here as domestic helpers since the 1980s, which means there are more Filipinos who have worked here for at least seven years than Indonesians. With Pia Lee-Brago, Jose Rodel Clapano