Court orders Hong Kong government to process residency rights of Pinay DH

HONG KONG – The court here directed yesterday the government to process the application for residency rights of a Filipino domestic helper.

The Court of First Instance denied the government’s request to defer the processing of Evangeline Vallejos’ petition for right of abode.

Justice Johnson Lam stressed that the “order of mandamus” or court direction only applies to Vallejos, and not to other foreign domestic helpers.

“The matter of Ms. Vallejos’ permanent residence will be reverted to the Registration of Persons Tribunal. That’s a pretty normal order, to go back to the Tribunal to make the findings of permanent residence in line with the court judgment. It’s highly, 100 percent pretty much that she will get permanent residence but it will be the Tribunal that will formally have to declare it. But we do not know how long it will take,” said Mark Daly, solicitor for Vallejos.

In arguing the need to maintain the status quo, government counsel David Pannick said the “Court of Appeal may take a different view” on the constitutionality of the Immigration Ordinance’s provision.

“It would be extremely damaging for a number of reasons to implement the decision and the Court of Appeal takes a different view,” he said.

Pannick also raised the government’s “grave concern” that by not acting on the applications of foreign domestic helpers for right of abode, the government would be in contempt of court.

But the judge said the government is not acting in defiance of the court. Lam, however, said other foreign domestic helper-applicants might challenge the government’s decision by way of similar judicial reviews in the future.

Last Sept. 30, Lam ruled that in excluding foreign domestic helpers 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.

The Basic Law, the city’s mini Constitution, states that 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.”

The government challenged before the Court of Appeal Lam’s ruling in the case of Vallejos, a domestic helper in Hong Kong for 25 years.

In a 10-page appeal filed on Oct. 4, the Commissioner of Registration pointed out that the “immigration authority and the legislature have the power to exercise immigration control by prescribing that foreign domestic helpers are permitted to enter and remain in Hong Kong on condition that they would not be able to become permanent residents here irrespective of the duration of their stay and to legislate to that effect respectively.”

Pending the finality of Lam’s ruling, Secretary for Security Ambrose Lee earlier said the Immigration Department will withhold the processing and approval of applications for verification of eligibility for a permanent identity card submitted by foreign domestic helpers.

“We will freeze the application. We will not process it unless and until there is a final determination of the relevant law points,” Lee said.

Aside from Vallejos, four other Filipinos have asked the High Court to allow them to apply for residency rights.

Following the Sept. 30 court victory of Vallejos on the right of abode, the Court of First Instance heard the petitions of couple Irene and Daniel Domingo, and Josephine Gutierrez and her 14-year-old son.

Senior Counsel Gladys Li, representing the Filipinos, told the Court that the petitioners have established their residence in the city for more than seven years; hence they should be given the right of abode.

In the judicial review of the Domingos last Oct. 18, the court heard that the Filipino couple raised their family in Hong Kong; and two of their three Hong Kong-born children have already been given permanent residency status.

Irene Domingo has been working as a domestic helper from 1982 to November 2007. Her husband Daniel first came to Hong Kong to work as a domestic helper in 1985.

The Filipino couple’s lawyer explained that in October 2007, the Domingos were offered an “unsolicited and out of the blue” unconditional stay status in exchange for the withdrawal of their appeal in the Tribunal.

Lifting their status as foreign domestic helpers allowed Daniel to work as driver, while Irene stood as housewife.

The offer for unconditional stay further stated that their ordinary residence starts on November 2007 when they signed the acknowledgement letters. This would allow them to apply for right of abode on November 2014, government counsel Abraham Chan said.

But in June 2008, the Domingos again applied for permanent residency status.

In August 2008, the Commissioner of Registration found insufficient evidence to their right of abode applications and refused to give them permanent identity cards. Their subsequent appeals were dismissed by the Tribunal in June last year, prompting the filing of the petition for judicial review at the Court of First Instance last December.

Li explained that the Domingos were not prevented from asserting their residence status prior to November 2007.

The government counsel, on the other hand, defended the Immigration commissioner’s grant of unconditional stay as an “application of justice” but the Domingos, “after taking the benefits, escaped from their end of the bargain.”

Gutierrez, meanwhile, has been working as a domestic helper since 1991. She has four adult children, two of whom are also working as domestic helpers in the former British colony.

Gutierrez’s fifth son, who was born in Hong Kong December 1996, is the fifth Filipino to challenge the Tribunal’s dismissal of a right of abode petition.

The young Gutierrez’s father is an American citizen whom his mother has lost contact with. He holds a student visa issued in September 2010.

Judge Lam has reserved his judgment on the petitions of the four Filipinos.