Should Foreign Domestic Helpers be Allowed Permanent Residency in the HKSAR?

May 2006 Introduction Foreign domestic helpers contributed $13,784,705,540 to Hong Kongs economy in 2004 about 1% of Hong Kongs annual GDP (EconomicContributions of FDWs in Hong Kong, Asian Migrant Center Report). Yet, the Hong Kong government continues to exclude foreign domestic helpers from being eligible for permanent residency. The policy came into the spotlight when Wendy Yeung applied for judicial review in the High Court. Ms Yeung, a former foreign domestic helper who arrived in Hong Kong in 1996, married a local Hong Kong permanent resident in 2001 and applied for unconditional stay in the HKSAR. At issue is whether Hong Kongs policy of refusing foreign domestic helpers right of abode is discriminatory or is, as Stock J noted inSantosh Thewe & Another v Director of Immigration, [2000] 1 HKLRD 717, a distinction that has objective justification. No Permanent Residency for Foreign Domestic Helpers According to the Hong Kong Immigration Departments report, Entry of Foreign Domestic Helpers May 2005, there were over 220,910 foreign domestic helpers working in Hong Kong as of April 2004. Of this figure, 53.97% came from the Philippines, 42.17% from Indonesia, and 2.15% from Thailand. A 2003 article in the Hong Kong Standard noted that some 15,000 foreign domestic helpers might now be eligible for permanent residency were it not for conditions imposed on their stay by the Hong Kong Government. (See Cannix Yau, Maid in abode bid Hong Kong Standard, 27 September 2003). Article 24(4) of the Basic Law (BL) grants permanent residency to 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 before or after the establishment of the Hong Kong Special Administrative Region while art 24(3) BL, as noted by Li CJ in Ng Ka Ling (an infant) & Ors v Director of Immigration, [1997] 1 HKC 291. confers the right of abode in unqualified terms on permanent residents.

This is echoed in s 2A of the Immigration Ordinance (Cap 115) which gives permanent residents right of abode in Hong Kong. Foreign domestic helpers who are not residents of China, Macau, or Taiwan are employed in Hong Kong under a standard two-year employment contract which specifies that the foreign domestic helper is to do domestic duties but is silent with regards to residency in the HKSAR. However, the HKSAR Government, in various publications for foreign domestic helpers, such as the Hong Kong Home Office Bureaus publication Your Guide to Services in Hong Kong, English Version has made it clear that foreign domestic helpers must leave the HKSAR within two weeks of the termination of their contracts and that foreign domestic helpers are not considered permanent residents. The Immigration Ordinance denies the privilege of permanent residency to foreign domestic helpers from outside Hong Kong. Schedule 1 only permits those who have ordinarily resided in Hong Kong to attain permanent residency; with sch 1(2)(d) stating: A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region may be eligible. Section 2(4)(vi) of the Immigration Ordinance is more specific in denying foreign domestic helpers from ordinarily residing in the HKSAR. It says, For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong while employed as a domestic helper who is from outside Hong Kong. Ordinary residence under para 2(b) of sch 1 of the Immigration Ordinance must be continuous. If ordinary residence ceases before the expiry of the continuous seven-year period, the time has to begin again. Lord Scarman described ordinary residence in Akbarali v Brent LBC[1983] 2 AC 309 as referring ...to a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. As well, Ribeiro PJ noted in Prem Singh v Director of Immigration (FACV000007/2002) that the permanence requirement in art 24(2)(4) of the BL requires both an intention to reside and steps

taken by the applicant with a view to residing in Hong Kong permanently or indefinitely, rather than for a limited period. By signing a standard two-year employment contract a foreign domestic helper does not conclusively indicate intent to take up permanent residence in Hong Kong and, as the Secretary for Security has indicated, foreign domestic helpers will not be considered as ordinarily resident on the basis that the guiding principle that certain persons admitted for employment specifically for a short-term period, a particular project, or a particular employment contract should not become part of the permanent population of Hong Kong. Additionally, the two-week rule, under which foreign domestic helpers must either find employment or leave Hong Kong within two weeks of the termination of their employment contracts, presents another hurdle for foreign domestic helpers attempting to continuously reside in Hong Kong for seven or more years. A failure to leave breaches a condition of stay. After the 1997 Handover, the Immigration Ordinance required that all non-Chinese applicants be settled in Hong Kong before becoming a permanent resident. Paragraph 3(1)(c) of sch 1 says that to establish permanent residence a person must be settled in Hong Kong at the time of the declaration. That such restrictions apply to non- Chinese has led to allegations of racial discrimination, particularly as the concept of being settled is not found in the BL. In Prem Singh, the Court of Final Appeal (CFA) considered the matter of settlement and held para 3(1)(c) of sch 1 of the Immigration Ordinance to be unconstitutional as it contravened art 24(2)(4) of the BL. In his decision, Ribeiro PJ noted that: paragraph 3(1)(c) of Schedule 1 to the Immigration Ordinance contravenes Article 24(2)(4) Basic Law and is unconstitutional to the extent that such paragraph, in combination with paragraph 1 (5)(b) of the said Schedule, requires a person not to be subject to any limit of stay in Hong Kong at the time of making the declaration referred to in paragraph 3(1)(b) of the said Schedule or at the time of such persons application for verification of his status as a permanent resident of the Hong Kong Special Administrative Region within Article 24(2)(4) Basic Law. With this obstacle removed, the prospect of a legal challenge to the HKSARs policy of denying permanent residency to foreign domestic helpers is now real. But would such a challenge be viable on the bases of equality, family life, and/ or legitimate expectation?

Equality? Article 25 of the BL provides that All Hong Kong residents shall be equal before the law. This echoes art 26 of the International Covenant on Civil and Political Rights (ICCPR), which states that; All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Article 26 goes further to ban discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The ICCPR has been incorporated into the BL through art 39 of the BL and the Hong Kong Bill of Rights Ordinance (Cap 383) (BORO). In addition, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which was extended to Hong Kong in 1969 by the British Government, has continued in force in Hong Kong after the Mainland government notified the United Nations Secretary-General that the ICERD would continue to apply to the HKSAR after July 1, 1997. Some maintain that denying permanent residency to foreign domestic helpers, no matter how long they have worked in the HKSAR, is discriminatory particularly as the bulk of foreign domestic helpers are Filipino, Thai or Indonesian and a businessperson or professional acquires full rights of residency after seven years. "In Prem Singh, the Court of Final Appeal (CFA) considered the matter of settlement and held para 3(1)(c) of sch 1 of the Immigration Ordinance to be unconstitutional as it contravened art 24(2)(4) of the BL." As foreign domestic helpers earn only a minimum wage of HK$3,270 per month, denial of permanent residency to foreign domestic helpers may also constitute income discrimination. Nonetheless, courts have upheld discriminatory immigration policies in the past. In Santosh the Court of First Instance noted Immigration policy properly has regard to a range of factors which included the preservation of the employment market for residents of Hong Kong, and to permit others to work only where there is a shortage of a particular skill within the resident pool. Countries also have a range of legislative tools to prevent the arrival of unwanted foreigners. The United States for example, has the right to deport legal immigrants who threaten public welfare. Germany restricts the entry of immigrant youths over sixteen and denies entry to spouses married to persons who immigrated as children or were born in the Federal Republic of Germany.

Japan has never allowed large numbers of foreigners into its country for the purpose of permanent residence. Great Britain established control to reduce the entry of British passport holders of Asian descent from East Africa in 1968, introduced the concept of Right of Abode in the Immigration Act of 1971 and implemented additional restraints in the British Nationality Act of 1981. Britain also imposed restrictions on the applicability of the ICCPR including this condition: The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in the departure from the United Kingdom as they may deem necessary from time to time and accordingly, their acceptance of article 12, paragraph 4, (Article 12(4) ICCPR states: No one shall be arbitrarily deprived of the right to enter his own country) and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories. In addition, economic considerations have led receiving jurisdictions to bar from immigration persons with insufficient means to support themselves and their dependants during their stay in the territory. Most jurisdictions in the region prohibit people from entering if they are likely to become a public charge, place demands on social security systems, or are vagrants, paupers and beggars. Thailand and the Philippines, for instance, bar persons seeking unskilled or other low-level employment from entry. There is also the matter of protecting the local work force. According to the Hong Kong Census & Statistics Department, unemployment rates reached record levels of 7.9% in 2003 (though they fell to 6.8% in 2004); unemployed Hong Kong women, for example, view foreign domestic helpers as a source of competition and as a potential strain on the local social welfare system. Under present immigration policy, foreign domestic helpers are not permitted to sponsor family members to enter and reside in Hong Kong as their dependents. This might change were foreign domestic helpers allowed permanent residency. Section 2A, Part 1A(1) (b) of the Immigration Ordinance provides a Hong Kong permanent resident with the right of abode and the right (b) not to have imposed upon him

any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect. In addition, s 2 (e) of sch 1 allows permanent residency for children born if one of the parents had permanent residency or right of abode in the HKSAR. Furthermore, Hong Kong residents have the right to social welfare in accordance with the law as per art 36 of the BL. Were foreign domestic helpers to be granted permanent residency the question of whether existing social services infrastructure could manage the additional burdens becomes of legitimate concern. Given the local cost of living, if a foreign domestic helper in the HKSAR were to get permanent residency, then invited members of her family to live in the territory, she would almost certainly be unable to support herself and locally based family members on the standard minimum foreign domestic helper wage of HK$3,270 per month without external assistance. Thus, there are valid public policy reasons for limiting residency rights to foreign domestic helpers. This was the conclusion reached by the court in Santosh when it maintained that discriminatory immigration policies would not contravene art 25 of the BL, noting that there were objective justifications for such practices and that such policies did not amount to unequal treatment. In his ruling Stock J noted: There was a cardinal distinction between discrimination on the one hand and distinctions which had objective justification, on the other. Immigration regimes worldwide were wary about letting in as residents those who might become a burden on state resources, or those who might unfairly take up jobs at the expense of permanent residents of the host country. It would therefore seem that foreign domestic helpers may be unable to base a claim for permanent residency on grounds of equality. Can permanent residency be argued for on the basis of protecting family life? Family Unity? Prolonged separations have adversely affected relations between spouses and between parents and children and led to family tragedies. As foreign domestic helpers cannot get permanent residency, they cannot invite their families to live with them in the HKSAR and therefore must live and work apart from them. Does this deny foreign domestic helpers the right to enjoy family life? Human rights law protects family life. Article 37 of the BL says the right of Hong Kong residents to raise a family should be protected by law and protects freedom of marriage.

Family life is also safeguarded in arts 17 and 23 of the ICCPR. Article 17(1) states: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home. Article 23 states: (1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (2) the right of men and womento found a family shall be recognized). In addition, Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which has been incorporated into the BL through art 39 of the BL, states that the widest possible protection and assistance should be accorded to the family. Article 23(1) of the ICCPR was invoked in Ng Ka Ling v Director of Immigration[1999] 1 HKC 291 as an aid to include children born out of wedlock. In Chan Kam Nga v Director of Immigration [1998] 1 HKC 16 Keith J held that art 24(2) (3)of the BL should be interpreted in light of Article 23(1) of the ICCPR. Though common residence and mutual enjoyment of family members is generally regarded as a crucial feature of family life, a common home is not necessarily a prerequisite for protection of the family. It was accepted in Abdulaziz, Cabales and Balkandali v United Kingdom(1985) 7 EHRR 71 that family life could arise from a lawful marriage even if the applicants had not established a common residence and inGul v Switzerland (1996) 22 EHRR 93, family life was held to exist in spite of the fact the parties had lived apart. Courts have not always been sympathetic to the plight of split families. In Chan Kam Nga, Chan CJHC suggested that hardships suffered by split families were largely self-induced. In addition, both the European Court of Human Rights and the European Commission on Human Rights have supported tough immigration policies against aspiring immigrants. Finally, in X & Y v UK (1978) 12 D & R 32, an admissibility decision considered by the Commission at Strasbourg, held that art 8 of the European Convention on Human Rights (ECHR), whose words echo the spirit of art 37 of the BL, art 10(1) of the ICESCR and arts 17 (1) and 23(1) of the ICCPR, did not oblige a State to grant a foreign citizen entry into its territory for the purpose of establishing a new family relationship there. Article 8 says: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the rights and freedoms of others. While foreign domestic helpers in Hong Kong might claim that discriminatory immigration and residency policies contravene rights to family life under art 37 of the BL and other international treaties, it would be difficult for them to demonstrate that they could not have a family life elsewhere due to serious legal or practical difficulties. Moreover, art 37 cannot be viewed in a vacuum and must be considered with other parts of the BL, notably art 39. In Santosh Stock J noted that in the case of Secretary for Justice v Oriental Press Group Ltd & Others [1998] 2 HKLRD 123, in relation to art 27 of the BL: Article 27 merely identifies a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of Article 39 is to permit restrictions on the rights protected in Chapter III (of the Basic Law), provided that those restrictions are provided by law and are compatible with various international instruments, including the ICCPR. Section 11 of the BORO does provide such restriction stating that: As regards to not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay and departure from Hong Kong or application of any such legislation. Furthermore, art 39(2) of the BL does not vest Hong Kong residents with unlimited rights (stating that The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article) while art 39(1) of the BL provides that the ICCPR shall remain in force as applied to Hong Kong. In that regard, the ICCPRs application is limited by both the aforementioned proviso on the applicability of the ICCPR (that the UK applied to itself and dependent territories, Hong Kong being one at the time) and by this additional condition: The Government of the United Kingdom reserves the right not to apply Article 13 (ICCPR) in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority.

(Article 13 ICCPR states An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.) The net effect of these limitations and s 11 of the BORO is to exempt Hong Kongs policy of denial of permanent residency for foreign domestic helpers from the ICCPR, BORO, and art 39of the BL safeguards, as it falls under the ambit of immigration policy. Therefore, there would be no contravention of arts 37 and 39 of the BL as the ICCPR applies to Hong Kong or the BORO. Legitimate Expectation? Given the CFAs ruling in Prem Singh, and the fact that local courts in various immigration cases, such as Ng Ka Ling, have found in favour of right of abode applicants, do foreign domestic helpers now have a legitimate expectation of potentially acquiring permanent residency? Substantive legitimate expectation was raised in Ng Siu Tung and Others v Director of Immigration [2002] 1 HKLRD 561, which is the first authority approving and applying the doctrine of substantive legitimate expectation at the final appellate court level in any common law jurisdiction. Legitimate expectations may be induced by express representations, implied representations, or established practice. Under the doctrine, the question is whether the existence of a legitimate expectation can give rise to a substantive remedy. In other words, can a court compel an administrator to grant a substantive benefit to an individual based on that individuals legitimate expectation of receiving such benefit? In Ng Siu Tung it was argued that the cumulative effects of the public statements made by senior government officials both before and after the judgments in Ng Ka Ling and Chan Kam Nga, representations made to individual applicants by the Director of Immigration and the Legal Aid Department and statements made and procedures adopted by judges and counsel during the course of litigation leading to the aforementioned judgments, created a legitimate expectation on the part of the applicants that they would receive the same treatment as the parties in the Ng Ka Ling and Chan Kam Nga cases.

However, there is no evidence to indicate that the HKSAR government has changed its position with respect to foreign domestic helpers and permanent residency because of Prem Singh or other local cases. Nor has the government issued any statement suggesting it might entertain the notion of allowing foreign domestic helpers to apply for permanent residency. Moreover, as Prem Singh, Ng Ka Ling, Chan Kam Nga, andNg Siu Tung did not specifically involve foreign domestic helpers, it would be difficult to argue that they give rise to a legitimate expectation among foreign domestic helpers. Conclusions Foreign domestic helpers continue to be refused the right to permanent residency by the HKSAR. It could be argued that within the human rights framework established under the Basic Law and the international Human Rights treaties that apply in the HKSAR, particularly the ICCPR and ICESCR, such refusal discriminates against foreign domestic helpers and may split the families of foreign domestic helpers, potentially contravening various provisions of the ICCPR and ICESCR. On the other hand, the HKSAR could defend its practice of denying permanent residency to foreign domestic helpers on the grounds of public policy and claim that it does not contravene art 25, 37 or 39 of the BL or the BORO, given the restrictions on the applicability of the ICCPR in Hong Kong and s 11 of the BORO. A comparison of Hong Kongs immigration practices with those of other countries shows that its policies are not out of line and as the Director of Immigration has broad discretionary powers, he could conceivably grant equitable relief where special situations call for it. Finally, foreign domestic helpers might be hard pressed to raise arguments based on legitimate expectations or family unity given existing case law, the lack of objective evidence supporting potential claims of substantial legitimate expectation, and the difficulty of establishing that serious legal or practical impediments deny foreign domestic helpers the right to family life elsewhere.