Hong Kong’s Constitution is called the Basic Law and its Article 24 grants permanent residence to qualified “Foreigners (persons not of Chinese nationality) who have lived in Hong Kong lawfully for 7 years and have taken Hong Kong as their permanent place of residence.” But the law does not apply to all foreigners. On March 25, 2013, Hong Kong’s Court of Final Appeal (CFA) ruled that foreign domestic helpers (FDHs) -specifically two Filipino maids named Evangeline Vallejos and Daniel Domingo both of whom have lived lawfully in HK since 1986- are not eligible to apply for permanent residence.
Eni Lestari, spokesperson of the Asian Migrants Coordinating Body (AMCB), said the decision upheld the HK government’s argument that foreign domestic workers are not ordinarily residing in Hong Kong – a requirement for one to be able to apply and be considered as a permanent resident in the territory. “But” Lestari asked, “was it not the HK government itself that prescribed the working and living conditions of foreign domestic workers by imposing the two-week rule and the mandatory live-in employment arrangement that give rise to our slave-like condition?”
NEW CONDITIONS OF STAY
The two-week rule in the New Conditions of Stay (NCS) means that any FDH who is laid off by the employer, for any reason, must leave HK within two weeks. The mandatory live-in arrangement rule requires the FDH to live in the residence of the employer. They are the main policies that define the living and working situation of foreign domestic workers in Hong Kong, Lestari said.
The abject living condition of domestic workers was illustrated when a HK magazine published a photo of a domestic helper’s bed perched on top of a toilet in a tiny bathroom. “When the government made live-in arrangements mandatory, they forced workers to put up with whatever conditions their employers offered them,” said Lestari.
Moving out of an employer’s home is banned under a rule introduced in 2003 and domestic workers found not to be living in the employers’ home are routinely arrested and deported.
Doris Lee, 43, an employer of a domestic worker, expressed sympathy with FDHs and their living conditions. “Toilets, the top of laundry machines and cupboards are not suitable places to sleep,” she said.
Lestari described the NCS rules as binding foreign domestic helpers in a “condition of degradation. Coupled with the mandatory live in arrangement, our exploited condition is further magnified. The court’s decision not only allowed for exclusion and discrimination to perpetuate, but also exposed the slave situation of foreign domestic workers. We are not ordinarily residing in Hong Kong precisely because we are made a disposable subclass of workers,” she said.
Evangeline Banao Vallejos left the Philippines and her family to seek work in HK in 1986, at the time when HK was still a British colony. She has continuously worked for the family of Barry Ong for more than 25 years, a family that has supported her efforts to obtain “permanent residence.” This concept was introduced in the Hong Kong Immigration Ordinance in 1987 which allows persons not born in HK to gain the right of abode there.
In 1992, the Hong Kong Immigration Ordinance was amended to state in Article 2(4)(a) that “ordinarily resident” would not apply to people who had landed unlawfully or who had breached their limit of stay, or were refugees. On July 1, 1997, immediately after the transfer of HK sovereignty to China, the law was again amended to specifically exclude foreign domestic helpers.
In April of 2008,Evangeline, who expressed her hope to one day retire in Hong Kong, applied for permanent residence under Article 24 of the Hong Kong Basic Law. Her application was denied based on the 1997 exclusion of FHDs.
After her administrative appeals failed, Evangeline sought the assistance of Daisy Mandap, editor of the HK Filipino community newspaper, The Sun (www.sunweb.com.hk). Mandap approached barrister Mark Daly to represent Evangeline. Daly readily accepted Evangeline’s case and brought in Gladys Li, a founding member of Hong Kong’s Civic Party, to file suit challenging the constitutionality of the provision in the Immigration Ordinance excluding foreign domestic helpers.
The hearing on Evangeline’s case before Justice Johnson Lam of the Court of First Instance of the High Court (CFI) began on August 22, 2011, and lasted three days. The heavy media attention on the case caused the courtroom to be jam packed. Hundreds more watched the proceedings on a large screen television in the lobby even as demonstrators for and against the FDHs and Evangeline faced off outside the courthouse.
Daisy Mandap attended the hearing and wrote: “the government’s lawyer shocked not a few people when he likened domestic helpers to prisoners because of the many controls imposed on their movements while in Hong Kong. They should serve only one employer, live with them, and when, for any reason, they are told that they are no longer needed, be prepared to go, either instantly, or after serving out a month’s notice in lieu of salary. Shocking as the analogy was, it drilled home the painful truth that foreign domestic workers here have been allowed to live and work under restrictions so severe that they are just slightly better off than prisoners.”
Most of Hong Kong’s establishment, including management and labor, lined up against Evangeline and the FDHs. The Democratic Alliance for the Betterment and Progress of Hong Kong(DAB) warned that 125,000 FDHs would each sponsor an average of three dependents to come to Hong Kong, meaning a total of 500,000 persons newly eligible for government programs such as public education, housing subsidies, and Comprehensive Social Security Assistance, leading to tens of billions of dollars in additional public expenditures.
In its August 1, 2011editorial (“HK and Anti-Filipino Sentiment”), the Asia Sentinel wrote:
“The Philippines can always be relied upon to be a butt of derision in Hong Kong…. But the pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB), an arm of the Communist Party and the territory’s largest party, has taken anti-Filipino sentiment to new levels. In an attempt to present itself as the party of the common man and to divert attention from other grassroots issues, the DAB has launched a scare campaign suggesting that Hong Kong is in danger of being flooded with Philippine migrants, creating a huge rise in local unemployment and costing billions in welfare payments.”
DAB was not alone. The Hong Kong Employers of Domestic Helpers Association joined DAB’s campaign against Evangeline and the FDH workers. Even the Hong Kong Federation of Trade Unions(FTU) expressed concern that increasing the labor supply by giving FDHs the freedom to pursue other employment would put other HK workers at a disadvantage. The FTU collected 91,500 signatures in 18 electoral districts opposing the granting of the right of abode to FDHs.
THE CIVIC PARTY
The Hong Kong Human Rights Monitor questioned the DAB’s expenditure figures, describing them as “scare tactics” similar to the DAB’s campaign of opposition to residence rights for mainland children.
Civic Party chairman Alan Leong challenged DAB’s assumption that maids could qualify for permanent residence even if Evangeline won her case, noting that the Immigration Department required applicants for permanent residence to sign a declaration that, among other things, they had “sufficient means of income to support myself and my family in Hong Kong without assistance”.
The Civic Party had been a political force in Hong Kong district elections but the issue of the FDHs caused it to lose support from voters. Its opponents linked Evangeline’s lawyer, Gladys Li, to the Civic Party which, according to their political ads,“ is helping foreign maids to fight their residence case” which, they said, would lead to massive increases in population and public expenditures. An editorial in the influential Wen Wei Po journal accused the Civic Party of being “an enemy of the people” for their support of FDHs. Voters’ perceptions that Civic Party candidates supported Filipino maids led to their dismal showing in the November 2011 district councils elections.
VICTORY FOR FILIPINO MAIDS
On September 30, 2011, Justice Lam ruled in Evangeline’s favor finding that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law. In effect, it was unconstitutional.
Justice Lam cited government estimates that about 285,000 foreign domestic workers were employed in Hong Kong at the end of 2010, and 117,000 had been here for at least seven years.
The workers, who look after children and perform household chores, make up the majority of non-Chinese residents in this territory of seven million. They are generally given room and board, work six days a week and earn a minimum wage below that set for other workers.
In a statement, Tim de Meyer of the International Labor Organization (ILO)praised the ruling stating: “One should not forget that the introduction of lower-skilled workers to do domestic tasks frees up higher-skilled workers, increasingly women, who contribute more to the local economy.”
Shortly after the ruling, the HK government filed an appeal asserting that Lam erred in finding that FDHs’ residence in Hong Kong could not be regarded as “out of the ordinary”, in finding that the government’s right to apply immigration control under Basic Law Article 154 could not be applied to FDHs.
The appeal to the High Court was heard on February 21-23, 2012. The government argued that the previous British administration’s treatment of Vietnamese refugees in Hong Kong in the1980s as a precedent and cited the previous ruling that time spent in HK on a student visa was not regarded as “ordinary residence” and did not count towards the time required to obtain indefinite leave to remain.
Gladys Li countered by informing the High Court that Vietnamese refugees were not given identity cards and had to live in government-specified refugee centers and did not fall within the definition of “ordinarily resident”. The case of Vietnamese refugees had no value as a precedent, she said, since the British colonial government could enact any law without limitation while the Hong Kong government today is bound by the Basic Law.
JUDICIAL VICTORY REVERSED
On March 28, 2012, the High Court of Appeal overturned the Lam decision finding that Immigration Ordinance 2(4) does not violate the Basic Law.
Evangeline’s lawyers appealed the decision to the Court of Final Appeal (CFA) which heard the case on February 26, 2013, in a hearing that lasted three days.
Vallejos and Domingo’s appeal came before the CFA on 26 February 2013, in a hearing that would last for three days. The lawyer for the FDHs challenged the constitutionality of the use of a “blanket exclusion” to prevent all people belonging to certain classes of residents from falling within the definition of “ordinarily resident” and thus eventually becoming entitled to apply for right of abode.
The lawyer for the HK government asserted that foreign domestic helpers “don’t form part of the permanent population” and thus it was legitimate for lawmakers to create a legislative definition of “ordinarily resident” which excluded them.
SAD DAY FOR MIGRANT WORKERS
On March 25, 2013, the CFA ruled in favor of the HK government by finding that the restrictions on FDH’s residence and employment in Hong Kong meant that they did not fall within the definition of “ordinarily resident” for immigration purposes. Justice Ma wrote in his ruling that foreign domestic helpers are “told from the outset that admission is not for the purposes of settlement.”
“Today is a very sad day for migrant workers in Hong Kong,” declared Eman Villanueva, the head of United Filipinos, a Filipino advocacy group in Hong Kong. “The Court gave its judicial seal to unfair treatment and the social exclusion of foreign domestic helpers in Hong Kong.”
The court’s decision, Eni Lestari said, not only denied us the right to abode but also denied us “recognition that foreign domestic workers are real and important parts of the HK society.”
In its March 27, 2013 Editorial (“Discriminatory”), the Philippine Daily Inquirer observed: “Whatever the reason, the final ruling sent an unmistakable message to foreign domestic helpers in Hong Kong: You may work for us, you may serve us loyally, faithfully, for years on end, but you will never be part of us.”
But, Lestari promised, the defeat of the court case for right of abode simply means that we will just have to persevere further in our advocacy for the rights and well-being of migrants.
“We shall continue to explore means to challenge discriminatory policies in Hong Kong. Furthermore, we shall continue to build the strength of our movement to battle every move that shall further degrade us and violate our rights as migrants, as women and as human beings,” Lestari said.
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