On September 30, 2011, the Hong Kong Court of First Instance issued a landmark decision concerning the rights of foreign domestic helpers in Hong Kong. The court found that a law prohibiting foreign domestic helpers from acquiring permanent residency in Hong Kong was unconstitutional.
Currently, foreign nationals who have been ordinarily resident in Hong Kong for a period of seven continuous years have the right to seek permanent residency, provided they have entered with valid travel documents.1 However, the Hong Kong Immigration Ordinance specifically restricts foreign domestic workers from satisfying this requirement by declaring 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."2
It is estimated that there are approximately 292,000 foreign domestic helpers currently living in Hong Kong. Of these, it is believed that some 117,000 would, based on this ruling, automatically acquire the right to apply for permanent residency, having met the requirement of living in Hong Kong for a continuous period of at least seven years. Permanent residency in Hong Kong grants individuals various rights, including the right to remain indefinitely in Hong Kong without a visa and access to the benefits system. Without permanent residency, all foreign domestic helpers, if dismissed by their employers, must find another job in the domestic service sector within two weeks or they have to leave Hong Kong. This two week requirement applies to all foreign domestic helpers regardless of how long they have lived in Hong Kong.
This issue has raised widespread debate, with commentators warning that this change in the law could put the Hong Kong social welfare system under immense strain, since all persons up to age 21 born to permanent residents also qualify for permanent residency.3 In addition, foreign domestic helpers from China would also be permitted to bring their children into Hong Kong.4 Human rights organizations have welcomed the decision, stating that they are hopeful that it will pave the way for migrant workers to be guaranteed equal treatment. However, the Hong Kong government has expressed disappointment in the ruling, announcing on October 4, 2011 that it would appeal the decision to the Court of Appeal. The government has stated that it will not process any applications for Right of Abode from foreign domestic helpers until a higher court makes a definitive ruling, noting that it is in the public interest for a final determination to be reached before any individual decisions are made. It is anticipated that this case may be escalated to the Standing Committee of the National People's Congress in Beijing, the final interpreter of Hong Kong's constitution. The Working World will keep readers updated on developments as the case moves through the courts.
1 Article 24(4) of the Hong Kong Basic Law
2 Section 2(4)(a)(v) of the Immigration Ordinance (Cap 115)
3 Article 24(5) of the Hong Kong Basic Law
4 Article 24(3) of the Hong Kong Basic Law
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