Pinay maids lose court battle for HK residency

HONG KONG – Hong Kong’s top court ruled yesterday against two Filipino domestic helpers seeking permanent residency – the final decision in a case that affects tens of thousands of other foreign maids in the southern Chinese financial hub.

The Court of Final Appeal was unanimous in its ruling, siding with the government’s position that tight restrictions on domestic helpers mean they don’t have the same status as other foreign residents. Lawyers for the two had argued that an immigration provision barring domestic workers from permanent residency was unconstitutional. 

The decision means Evangeline Banao Vallejos and Daniel Domingo are not allowed to apply to settle permanently after living at least seven years in Hong Kong. Vallejos has worked in Hong Kong since 1986 and Domingo since 1985. Neither appeared at court.

“While we respect the judgment we disagree with it,” said Mark Daly, a lawyer for the pair. “We are very disappointed. We’ve spoken to Ms. Vallejos and she was speechless. But calmly resigned and said ‘no problem’. Mr. Domingo said ‘it’s not fair’. That was his comment,” Daly told reporters outside the court.

“It was a privilege to represent such great people who contribute to and enrich our community. The legal battle has taken us some five to six years, a lot of difficulties. On the rule of law, we are quite disappointed,” he added.

He added that the ruling is “not a good reflection of the values we should be teaching youngsters and people in our society.”

The case has split the city, home to around 300,000 maids from mainly Southeast Asian countries. Some argue that barring maids from applying for residency amounts to ethnic discrimination. But other groups have raised fears that the case would result in a massive influx of maids’ family members arriving in Hong Kong, straining the densely populated city’s social services, health and education systems. Supporters of the maids say those fears are overblown.

Members of an activist group chanted “We are workers, not slaves” and other slogans on the courthouse’s front steps after the ruling was released. 

“Today is a very sad day for migrant workers in Hong Kong,” said Eman Villanueva, secretary-general of United Filipinos in Hong Kong. “The message from the Court of Final Appeal is very unfair and discriminatory.”

“We fear for the future of migrant workers in Hong Kong. With the court’s ruling today, it gave it judicial seal to unfair treatment and to the social exclusion of foreign domestic workers in Hong Kong,” Villanueva said in another interview.

“Are we aliens? Are we not the same as other migrant workers in Hong Kong?” he added.

In a 49-page judgment, the top court ruled that foreign domestic helpers (FDHs) are not “ordinary residents” in Hong Kong.

“It is clear that prominent distinguishing features have an important bearing on the nature and quality of the residence of FDHs as a class in Hong Kong... By way of summary, each time a FDH is given permission to enter, such permission is tied to employment solely as a domestic helper with a specific employer (in whose home the FDH is obliged to reside), under a specified contract and for the duration of that contract,” the judgment read.

“The FDH is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong,” it continued.

The two Filipinos challenged the Immigration Ordinance’s provision that excludes FDHs from the category of persons who may apply for permanent residency rights. Their lawyers argued that the ordinance is unconstitutional or inconsistent with the Basic Law, the city’s mini constitution.

The provision of the Immigration Ordinance 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 Basic Law, on the other hand, 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.”  

Hong Kong is a special administrative region of China and permanent residency is the closest thing it has to citizenship. 

Foreigners who work in other professions are eligible for permanent residency after living in Hong Kong for seven years. Those who have it can vote and work without needing a visa.

Government figures cited by a lower court in this case said an estimated 117,000 foreign maids had been in Hong Kong for that length of time as of 2010.

Filipinos account for more than half of the FDHs population in Hong Kong totaling 312,395 as of end-2012, data from the Hong Kong Immigration showed. There are 155,969 Filipino domestic workers, followed by 149,236 Indonesians. Thais numbered 2,990 while other nationalities totaled 4,200. 

Even as the Court of Final Appeal ruled in favor of the Hong Kong government, the top court dismissed the petition to refer the case to Beijing.

The landmark case was heard at the Court of Final Appeal last February.

During the three-day hearing, Michael Fordham, counsel for Vallejos and Domingo, argued that the Court of First Instance was correct when it declared as unconstitutional the Immigration Ordinance that excludes FDHs from the category of ordinary residents.

He added that the “blanket exclusion” prevents those who may be qualified to apply for permanent residency. – AP, Carina Roncesvalles