Hong Kong Asks Court to Seek China Guidance on Residence

Hong Kong’s government asked its top court to seek guidance from China’s highest legislative body over a legal challenge to its immigration rules by a foreign maid seeking permanent-residence rights.

The government would like the court to seek clarification of an earlier interpretation by China on residency rights, government lawyer David Pannick said in the Court of Final Appeal today. The court is hearing an appeal from Evangeline Vallejos against a rejection of her application.

A victory for Vallejos could give 117,000 foreign maids the right to stay in the city, and the appeal has opened up a wider debate on residency rights in the former British colony. A 2001 court ruling that children of mainland Chinese parents born in Hong Kong are entitled to residence has led to a surge in births and a public backlash.

“Domestic helpers are almost a side issue here,” said Danny Gittings, an assistant law professor at the University of Hong Kong’s School of Professional and Continuing Education. The government seems to want to expand the application of Chinese decisions in Hong Kong courts, he said.

The government’s request to the court, which some lawmakers have said threatens the judicial independence that Hong Kong was guaranteed when it passed to Chinese rule in 1997, would help resolve the right of abode issue of both foreign maids and babies born to mainland mothers, Justice Secretary Rimsky Yuen said in December.

Children’s Rights

China’s National People’s Congress Standing Committee said in 1999 that Hong Kong’s constitution limited residence rights, overturning a court ruling that could have allowed as many as 1.67 million migrants to the city from the mainland.

Hong Kong’s government, which was criticized for seeking the interpretation then, hasn’t previously tackled the 2001 ruling allowing residency for children of mainlanders born in the city. The Hong Kong Bar Association said this month that the court must consider the rights of children who may be affected if it seeks a decision from China.

The five-judge panel today declined a request from the lawyer of a child born in Hong Kong to mainland parents to join the case, saying that might require the adjournment of the hearing and that the points concerned would be considered.

Public Pressure

Hong Kong Chief Executive Leung Chun Ying said in his first policy address last month that his government will tackle the root of the problem of pressure on public services from babies born to non-local parents “by legal means.” Leung earlier banned Chinese mothers from giving birth in the city’s hospitals, citing a strain on the city’s resources.

The former British colony was guaranteed an independent judiciary and a separate legal system for at least 50 years under the Basic Law. Hong Kong’s rule of law and freedom of information have supported its status as a financial center.

Lawyers for Philippine-born Vallejos have argued that expatriates such as bankers and cooks can gain the right of abode after living in the city for seven years, and that immigration rules excluding foreign domestic helpers aren’t constitutional. The Court of Appeal ruled in March that Hong Kong’s basic law implicitly allows lawmakers to exclude people from the qualifying criteria.

The hearing for Vallejos is scheduled for three days.

The case is Vallejos Evangeline Banao and Commissioner of Registration, FACV19/2012 in Hong Kong’s Court of Final Appeal.

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