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LCQ1: Judicial review on foreign domestic helpers' right of abode

     Following is a reply by the Secretary for Security, Mr Ambrose S K Lee, to a question by the Hon Paul Tse Wai-chun in the Legislative Council today (October 19):


     Given that the Court of First Instance has handed down a judgment against the Government in the first judicial review case on the right of abode in Hong Kong of foreign domestic helpers (FDHs), will the Government inform this Council:

(a) of the measures and policy to be implemented during the period when the Government appeals against the aforesaid judgment to alleviate the concerns of Hong Kong people about the anticipated severe impact on Hong Kong brought by the lost case; and

(b) whether the Government will, on the basis of the impact on the basic demographic structure of Hong Kong brought by FDHs enjoying the right of abode and factors such as a timely interpretation of the Basic Law by the National People's Congress (NPC) may reduce procedural problems and ameliorate division in society as well as from the perspectives of national and local population policy and national sovereignty, consider making expeditious arrangements to seek interpretation of the Basic Law by the NPC?



     Regarding the two parts of the questions, my reply is as follows:

     Pursuant to Article 24(2)(4) of the Basic Law (BL24(2)(4)), 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 shall be permanent residents of the Hong Kong Special Administrative Region. Section 2(4)(a)(vi) of the Immigration Ordinance provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong while employed as a domestic helper who is from outside Hong Kong.

     On September 30, 2011, the Court of First Instance (CFI) handed down judgment on the judicial review on right of abode (RoA) lodged by a foreign domestic helper (FDH). The CFI has ruled that section 2(4)(a)(vi) of the Immigration Ordinance is inconsistent with BL24(2)(4). The Government respects but is disappointed with the judgment of the CFI. The Government firmly believes that the constitutionality of the relevant provision of the Immigration Ordinance should be upheld.

     The Government understands the immense public interest in the CFI judgment. After obtaining legal advice, the Government has made two applications to the Court in accordance with the law, including:

(a) On October 4, the Government has lodged an appeal to the Court of Appeal (CA), and at the same time applied to the CA to expedite the appeal hearing, because the Government believes that it serves the overall public interest to achieve final determination of the law as soon as practicable and minimise the unsettling factors pending appeal.

(b) On the date of judgment, i.e. September 30, the Government has applied to the CFI for temporary relief such that the Government needs not process RoA applications submitted by FDHs pending the outcome of the appeal. The application will be heard on October 26. At this stage, the Government will not process RoA applications submitted by FDHs.

     The CFI judgment involves an important constitutional issue and great public interest. The Government has lodged an appeal to seek to reverse the relevant judgment.  If the Immigration Department (ImmD) processes RoA applications submitted by FDHs at this stage, there may be serious disruption to many households. There may also be events which cannot be unravelled, and detriments which cannot be remedied, should the legal position be reversed upon appeal.

     The Government respects the rule of law. The Government will, in accordance with the law of Hong Kong, seek to reverse the CFI judgment within the judicial system on one hand, and prepare for all possible difficulties and challenges on the other, and seek to minimise possible disruptions to FDH-employing families pending appeal.

     President, the Government is making its best endeavours to convince the Court at the temporary relief hearing that it is necessary for the ImmD to withhold processing applications for verification of eligibility for permanent identity card submitted by FDHs until final determination of the law. If the application is granted by the Court, we consider it unnecessary at this stage to change the arrangements for the entry and employment of FDHs in order to avoid any disruption to the domestic arrangements of many families. Our priority is to pursue the appeal and present cogent arguments before the Court seeking to reverse the CFI judgment.

     We will closely monitor the development and take all necessary steps to seek final determination of the law as soon as practicable. We are keen to explore all measures, which are within the law and serve the best interests of Hong Kong, and get fully prepared to address the issue.

Ends/Wednesday, October 19, 2011
Issued at HKT 13:06


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