A Hong Kong judge handed a landmark victory to a Philippine maid, ruling restrictions barring her from applying for permanent residency were unconstitutional in a case that polarized public opinion over the rights of foreign domestic helpers.
Evangeline Banao Vallejos, who has lived in Hong Kong for 25 years, challenged the rejection of her application, and asked the court why expatriates such as bankers and cooks could gain permanent status after seven years. Judge Johnson Lam ruled in her favor today. The government said it would appeal.
In his ruling, Judge Lam said the decision could affect 117,000 people, more than a third of the maids working in Hong Kong. At least three political parties said an influx would strain the Chinese city’s health care, public housing and education resources.
“We are disappointed at today’s judgment,” said Joseph Law, chairman of the Employers of Domestic Helpers Association in Hong Kong. “We can’t accommodate such a sudden influx of population as this would impose a profound strain on our resources.”
The ruling comes as Hong Kong suffered its first economic contraction since 2009 in the second quarter. Households are also squeezed by higher food and rent prices, with inflation up 5.7 percent in August.
Judge Lam ruled the immigration law that bars foreign domestic helpers from eligibility for permanent residency “derogates” the meaning of the Basic Law. The Basic Law is the de-facto constitution that Hong Kong adopted after the British handed the city of 7.1 million residents back to China.
Foreign domestic helpers are required to live with their employers and can’t accept other jobs. In 2004, maids contributed HK$13.8 billion ($1.8 billion) to the economy, or one percent of Hong Kong’s output, according to a report by the Asian Migrant Centre, a non-governmental organization. The law mandates a minimum monthly wage of HK$3,740 ($480).
The Hong Kong government plans to appeal against the ruling, Ambrose Lee, the secretary for security, told reporters today.
A Hong Kong permanent resident has a legal right to live in the city without a visa, take any jobs, study, or establish a business. The resident has access to benefits such as public housing and social security, and can vote.
“This could lead to enormous pressure on our medical, educational and welfare system, imposing social and economic problems,” said Paul Tse, a lawmaker for the tourism industry.
Still, applications have to be approved by immigration and the maids will need to show they treat Hong Kong as their only permanent place of abode, said Eric Cheung, assistant professor in law at the University of Hong Kong.
“The notion that all 117,000 of those domestic helpers would qualify to work in other professions or choose to leave their current work is unrealistic,” said Rick Glofcheski, an associate professor of labor and tort law at University of Hong Kong.
In Hong Kong, about 567,000 work in the retail, food and accomodation industries, and should all 117,000 helpers enter those sectors, that would have an impact, Glofcheski said. That’s unlikely, he said.
Government lawyer David Pannick argued that Hong Kong’s Basic Law allows lawmakers to determine the status of foreign residents and that the maid wasn’t eligible to apply.
The special administrative region was guaranteed an independent judiciary for 50 years under the “one country, two systems” framework following the handover in 1997.
The Liberal Party and the leader for New People’s Party, Regina Ip, have previously called on the government to consider seeking an interpretation of the Basic Law by China’s Standing Committee of the National People’s Congress over the case.
“The ruling seemingly will have a huge impact, as many are worried that this would suddenly open the door to many foreigners,” said Cheung at the University of Hong Kong. “My concern is that such worries are overplayed to pave the way for the government to seek interpretation from Beijing, which would seriously undermine our judicial autonomy and independence.”
The rights of immigrants have been challenged before, and China has overturned decisions taken by the Hong Kong court. In 1999 the Court of Final Appeal ruled that mainlanders did not need China’s permission to enter Hong Kong as permanent residents, a decision that was reversed by Beijing.
The case is Vallejos Evangeline Banao and Commissioner of Registration, HCAL124/2010 in Hong Kong’s Court of First Instance.