1

The Maids Residency Case: Permanent Residency Exclusions on Foreign Domestic Helpers in the Special Administrative Region of Hong Kong By: Vincent Wong University of Toronto Faculty of Law

Table of Contents
Introduction .................................................................................................................................................. 2 The Foreign Domestic Helper Phenomenon in Hong Kong .......................................................................... 5 A. B. C. Background ....................................................................................................................................... 5 FDH Policy Structure and Subsequent Abuses .................................................................................. 7 Conceptualization as an Purely Economic Transaction Rights Tradeoff ...................................... 11

The Maids Residency Case (Vallejos v Commissioner of Registration) ....................................................... 14 A. B. C. D. Facts and Background ..................................................................................................................... 14 Court of First Instance ..................................................................................................................... 15 Court of Appeal ............................................................................................................................... 18 Court of Final Appeal and the Standing Committee of the NPC ..................................................... 19

Underlying Themes and Tensions ............................................................................................................... 19 A. B. C. Constitutional Rights vs. Regulatory Immigration Power ............................................................... 19 Minority Interests vs. Majority Will ................................................................................................ 21 National Identity and Prospect of Backlash .................................................................................... 23

Conclusions ................................................................................................................................................. 25

Introduction
On the morning of September 30th, 2011, Filipinos, Indonesians, Thais, and the rest of Hong Kongs substantial foreign domestic helper (FDH) population collectively waited with bated breath in anticipation of Justice Johnson Lams trial level ruling on their right to become permanent residents. When it was announced that Lam J had ruled on their side, muted celebration became of theme of the moment; celebration for the prospect of greater political rights in the Special Administrative Region, muted in the knowledge that their battle was only just beginning. After the ruling was announced, public backlash against the ruling of the Court of First Instance was swift and severe. Scores of people protested the decision outside the courthouse, carrying placards and chanting slogans such as the Civic Party betrayed Hong Kong! referring to prodemocracy legislators who supported the maids legal campaign for rights.1 The Hong Kong governments response was articulated by Secretary for Security Ambrose Lee, who announced that the ruling would be appealed and that all applications for permanent residency made by FDHs would be suspended in the interim.2 The permanent residence issue has been intensely polarizing in the court of public opinion and not without reason. Critics of the ruling point towards the scarce land and resources of the tiny city-state. With a population of over 7 million, Hong Kong is one of the most densely populated

Associated Press, Maid wins landmark residency ruling in Hong Kong, The Associated Press (30 September 2011) online: CBC News <http://www.cbc.ca/news/world/story/2011/09/30/filipino-maid-residencyhongkong.html>. 2 Ivan Broadhead, Hong Kong Court Rules in Favor of Domestic Worker Residency Rights, Voice of America (30 September 2011) online: Voice of America <http://www.voanews.com/english/news/asia/Hong-Kong-Court-Rulesin-Favor-of-Domestic-Worker-Residency-Rights-130844413.html>.

areas in the world.3 The ruling, if upheld, could potentially extend the right of abode to over a third of Hong Kongs 300,000-some FDHs as well as their direct relatives. Social benefits such as access to public housing, healthcare, education and assistance payments would all have to be extended to these individuals a situation that critics say will overburden Hong Kongs public infrastructure and negatively affect service provision to native Hong Kongers.4 Furthermore, critics argue that because restrictions on FDHs (including exclusions on obtaining permanent residency) are legislated and fully transparent to the public, FDHs have consented to the conditions of their employment. These requirements are seen as part of the deal when Hong Kong extends to FDHs the discretionary privilege of working and residing in Hong Kong. Under this line of reasoning, it is unfair for FDHs to then turn around and renege on these contractual terms by arguing for permanent residency under the auspices of rule of law, fairness, and equality. 5 Yet despite the broad public criticism, the case itself, Vallejos v Commissioner of Registration6 (aka Maids Residency Case: ), has become something of a cause clbre, not only for foreign domestic helpers in Hong Kong, but also globally.7 It is seen as a critical step

Census and Statistics Department Hong Kong Special Administrative Region, Hong Kong in Figures 2012 Edition, (Hong Kong: Census and Statistics Department, 2012) at 11. 4 Mary Ann Benitez & Winnie Tse, House of Cards, The Standard (29 July 2011) online: The Standard <http://www.thestandard.com.hk/news_detail.asp?we_cat=12&art_id=113579&sid=33196451&con_type=3&d_st r=20110729&fc=7>. 5 Daniel A Bell & Nicole Piper, Justice for Migrant Workers? The Case of Foreign Domestic Workers in Hong Kong and Singapore in Will Kymlicka & Baogang He, eds, Multiculturalism in Asia, (Oxford: Oxford University Press, 2005) 196. 6 Vallejos Evangeline Banao, also known as Vallejos Evangeline B v Commissioner of Registration and Registration and Another [2012] HKCA 149 [Vallejos Court of Appeal Ruling]. 7 See generally Homa Khaleeli, How domestic workers become slaves, The Guardian (6 August 2010) online: The Guardian <http://www.guardian.co.uk/lifeandstyle/2010/aug/06/domestic-workers-slaves>.

towards addressing systemic abuses against an often underappreciated8 and voiceless group of workers who, on a day-to-day basis, face discrimination, exploitation, and the threat of physical and verbal abuse. This shared experience of temporary migrant workers extends to all corners of the planet: from the private homes of Singapore and Hong Kong, to the extensive commercial construction projects of the Gulf States. A 2001 study conducted by a joint coalition of NGOs, spearheaded by the Asian Migrant Centre of Hong Kong, finds empirical evidence supporting this narrative of systemic abuse. The survey, distributed to a random sample of 2,500 FDH respondents, came back with some startling responses. 15% of respondents reported that they were paid under the statutory minimum wage, 22% reported that they were not given their mandatory weekly rest day, 26% reported that they were not give their 12 annual statutory holidays off, while a shocking 26% reported that they suffered from verbal and physical abuse, of which 4.5% of this subgroup reported that they had experienced sexual abuse during their employment.9 While there are debates as to exactly what the causal factors are for these results, it is clear that FDHs as a subsection of the Hong Kong population are especially vulnerable and that the attempt to secure permanent residency is situated within a broader struggle to protect their own rights and interests. This paper will attempt to shed light on this complex, multi-faceted issue by analyzing the Vallejos case in-depth as well as exploring some of the major forces and unresolved tensions that have led up to the current state of affairs. In many ways, the battle for permanent residency of FDHs in Hong Kong serves as a direct attack on the moral legitimacy of temporary migrant
8

A 2004 study conducted by the Asian Migrant Centre estimated the economic contribution for FDHs to Hong Kong at HK $13 billion a year (US $1.68 billion), amounting to almost 1% of Hong Kongs total GDP. See Asian Migrant Centre, Economic Contributions of FDWs in Hong Kong (2004) online: Asian Migrant Centre <http://www.asian-migrants.org/index2.php?option=com_content&do_pdf=1&id=7>. 9 Asian Migrant Centre, Baseline Research on Racial and Gender Discrimination Towards Filipino, Indonesian and Thai Domestic Helpers in Hong Kong (February 2001) at 19-25.

programs (TMPs) in general. As with most immigration questions, political, economic, judicial, and societal factors are all inextricably intertwined and there are no easy answers or solutions. Nevertheless, this paper will attempt to add fresh insights to the debate, unpack some of these underlying tensions, and briefly suggest some potential policy recommendations that attempt to balance these competing viewpoints and interests.

The Foreign Domestic Helper Phenomenon in Hong Kong

A. Background
In Hong Kong, the use of Foreign Domestic Helpers in the household has become so widespread that one-time foreigners are often taken aback. An unfamiliar visitor cannot help but be amazed at the prevalence (there are nearly 300,000 FDHs working in Hong Kong), the racialization (as of 2010, 49.4% were from Indonesia, 48% from the Philippines, and 1.3% from Thailand), and the genderization of the phenomenon (FDHs are almost exclusively women).10 Historically, the emergence of the FDH phenomenon can be tracked back to the explosive economic growth of Hong Kong in the 1960s and 1970s. During this time, Hong Kong leveraged its position as a key international hub that facilitated trade and commerce, particularly as the primary gateway between the West and an isolationist China. A structural move from an industry and manufacturing economy to a service and knowledge economy coincided with the mobilization of females in the workforce, leading to an increase of dual-income households as well as a newfound demand for domestic household labour.

10

Doris Lee, Keep our women safe at work! But are migrant domestic workers not women?, Asia Pacific Mission for Migrants (19 September 2011) online: Asian Pacific Mission for Migrants <http://www.apmigrants.org/home/item/54-migrant-domestic-workers-are-women>.

On the supply side, a combination of high unemployment, political corruption, instability, low wages, and general economic stagnation in the Philippines during this same time led to a ready supply of migrant workers looking abroad for greater economic opportunity.11 Through recruiting and employment agencies (some of which were part of a then-thriving criminal underground), Hong Kong families were matched up with foreign domestic helpers who were willing to work for longer hours and lower wages than their Hong Kong counterparts.12 Recognizing the importance of this arrangement for Hong Kongs future economic development, the Hong Kong government officially sanctioned FDH immigration in 1969.13 The Filipino government also explicitly promoted the emigration of Filipino workers to combat domestic unemployment and to benefit from remittances in the 1970s. This was done through the proemigration focus of the Labor Code of 1974, creating the political framework in which FDH migration was legitimized and officially encouraged.14 Over the years, FDHs have become an increasingly prominent and indispensable part of everyday life in Hong Kong. Common slang referring to FDHs developed, including the terms fei yung (: Filipino servant) and the somewhat derogatory bun mui (: Filipino girl), reflecting the fact that earlier migration flows of FDHs was sourced almost exclusively from the Philippines. As the Filipino economy started to grow and Filipino FDHs in Hong Kong developed a network with local NGOs to start advocating for better wages and employment standards, Hong Kong employers began a systematic shift in sourcing FDHs from Indonesia,

11

See generally Lucie Cheng, Globalisation and Womens Paid Labour in Asia (1999) 51(160) International Social Science Journal 217 at 221-223. 12 Ibid. 13 Kevin Hewison, Thai Domestic Workers in Hong Kong (2004) 34(4) Journal of Contemporary Asia 318 at 320. 14 Odine de Guzman, Overseas Filipino Workers, Labor Circulation in Southeast Asia, and the (Mis)management of Overseas Migration Problems (2003) 4 Kyoto Review of Southeast Asia online: Kyoto Review of Southeast Asia <http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue3/index.html>.

who were themselves experiencing migrational push factors in their home countries and thus represented a better economic deal for employers.15

B. FDH Policy Structure and Subsequent Abuses

The following section outlines how the Hong Kong governments policy on FDH migration is intimately connected with the systemic abuses and rights violations ultimately experienced by FDHs. There are three major pieces of legislation that provide the policy framework for regulation of FDH affairs in Hong Kong: (1) the Immigration Ordinance, (2) the Employment Ordinance, and (3) the Employers Retraining Ordinance.16 The Employers Retraining Ordinance was imposed in 2003 and created a HK $400 (roughly USD $52) monthly levy on employers of FDHs that is put into a pool to enhance employment opportunities for native Hong Kong workers through occupational (re)training.17 However, the policy was widely unpopular among employers and FDHs alike and the levy was subsequently suspended from effect until 2013.18 Therefore, the Ordinance is currently of negligible effect to FDHs although that situation may change as the suspension of the retraining levy lifts. Of the remaining two ordinances, the Employment Ordinance sets out the terms of the Standard Employment Contract (SEC) that governs each and every employer-FDH relationship.19 The SEC provides for a standardized 2 year contract term, at the end of which the FDH must return
15

See generally Nicole Constable, Maid to Order in Hong Kong: Stories of Filipina Workers, 2 ed (Cornell: Cornell University Press, 2007). 16 Ronald Mok, Foreign Domestic Helpers in Hong Kong: Towards Equality of Rights (2008) 1:2 Queensland Law Student Review 101 at 106; Immigration Ordinance 1971 (Cap 115); Employment Ordinance 1986 (Cap 57); Employers Retraining Ordinance 1992 (Cap 423), ss 14-15. 17 Xinhua News Agency, Hong Kong to Cut Foreign Maids Salary, Xinhua News Agency (26 February 2003) online: china.org.cn <http://www.china.org.cn/english/China/56954.htm>. 18 Law Yuk Kai, Proposed suspensions of levy do more harm than good, Hong Kong Human Rights Monitor (27 July 2008) online: Amnesty International <http://www.amnesty.org.hk/html/node/10156>. 19 Labour Department of Hong Kong, Frequently Asked Questions: Employment of Foreign Domestic Helpers (FDHs), (6 September 2011) online: Labour Department of Hong Kong <http://www.labour.gov.hk/eng/plan/FAQ.htm#1>.

nd

back to her home country for a minimum of one week before applying for a renewal of the original employment contract or signing a new one with another employer.20 The SEC sets out requirements for employers including obligations to provide free medical treatment to the FDH, to provide remuneration no lower than minimum wage (which in 2011 was upped to HK $3,740 or USD $483 per month), to provide suitable living accommodation to the FDH with reasonable privacy, and to provide one rest day per week as well as time off on statutory holidays.21 The Employment Ordinance also sets out certain FDH requirements and restrictions. FDHs are restricted to carrying out domestic duties outlined in the SEC, cannot apply for jobs in other occupations and are prohibited from obtaining housing outside of an employers residence.22 The final major document in the policy framework is the Immigration Ordinance, which regulates the terms and conditions of work visas, stay durations, and deportation procedures. There are two aspects of the Immigration Ordinance that are particularly noteworthy in this discussion. First, since 1987, the Immigration Ordinance has imposed a two-week rule in which, upon termination or completion of the employment contract (whichever comes earlier), an FDH has only two weeks to find new employment before they must leave Hong Kong. Second, FDHs must return to their home country for at least a week after the 2 year term of the SEC ends. This requirement is put in place ostensibly so that FDHs can maintain connections

20 21

Ibid. Ibid. 22 Ibid.

with their home country but in effect forcefully prevents an FDHs employment from being considered continuous for the purposes of obtaining permanent residency23. This leads us to the heart of the Vallejos case. The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China (the Basic Law) is a quasiconstitutional document that governs the affairs of the Hong Kong Special Administrative Region in a way that allows a high degree of Autonomy from the Mainland Chinese government in Beijing.24 While Article 24(2)(4) of the Basic Law sets out the right to obtain permanent residency for foreigners who have ordinary resided in Hong Kong for 7 years25, section 24(4)(a)(vi) of the Immigration Ordinance explicitly prohibits FDHs from obtaining permanent residency notwithstanding the Basic Law provision.26 This precludes FDHs from obtaining the right to abode, right to vote, right to bring in family dependents, and the right to certain social benefits such as public housing and social assistance payments.27 Taken together, the restriction on occupation, the mandatory tie to the employers residence, the mandatory one week repatriation, the permanent residency exclusion, and the two-week rule create a legal and policy framework which result in gross power imbalances between employers and FDHs. These power imbalances in turn create an environment where abuse can occur with impunity and redress is often infeasible.
23

Ronald Yu, Should Foreign Domestic Helpers be Allowed Permanent Residency in the HKSAR?, Hong Kong Lawyer (May 2006) online: Hong Kong Lawyer <http://www.hk-lawyer.com/InnerPages_features/0/2129/2006/5>. 24 Government of Hong Kong, The Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China 1997, online: Government of Hong Kong <http://www.basiclaw.gov.hk/en/basiclawtext/> [Basic Law]. 25 Basic Law, Art 24(2)(4). 26 Immigration Ordinance 1971 (Cap 115), s 24(4)(a)(vi). 27 Community Legal Information Centre, What legal rights do Hong Kong permanent residents enjoy?, online: HK CLIC <http://www.hkclic.org/en/topics/immigration/hk_permanent_residence/q2.shtml>.

10

For example, the employer holds de facto power of deportation over the FDH. If the employer terminates the contact, the FDH not only loses her only source of income and accommodation, but because of the two-week rule, only has a very short amount of time in which to seek a new employer or face being forcibly deported. During this period, the FDH is not privy to healthcare or social welfare payments and must rely on charity and sometimes illicit activities (such as prostitution) just to make it through. The constant threat of deportation creates a major disincentive for FDHs to complain or voluntarily terminate their contracts if employers violate their rights or subject them to physical or verbal abuse.28 Even when, in spite of threat of deportation, the FDH follows through in making a complaint about an employer (usually to the Labour Department of Hong Kong), the two-week rule makes following the process all the way to settlement virtually impossible. An employer may simply terminate the contract and the FDH would have to extend their visa before the two week deadline (which is sometimes rejected by the Department of Immigration). Visa extensions are short in duration so the FDH is required to renew frequently, racking up administrative fees.29 This adds to their increasingly precarious financial situation given that an FDH is unable to seek other work while the claim is pending. Legal pursuits of claims may take up to 15 months to reach Court or a Labour Tribunal, by which time most FDHs would have long since run out of funds.30 A network of pro-FDH NGOs attempt to fill this void in social welfare provision as best as

28 29

Mok, supra note 16 at 108. Peggy WY Lee and Carole J Petersen, Forced Labour and Debt Bondage in Hong Kong: A Study of Indonesian and Filipina Migrant Domestic Workers (2006) Occasional Paper No 16, Centre of Comparative and Public Law, University of Hong Kong Faculty of Law at 7. 30 Mary Ann Benitez, Rough Justice, South China Morning Post (20 August 2007) A14.

11

possible, but because of their limited resources, only a very small percentage of FDH rights claims can be supported all the way to settlement.31

C. Conceptualization as an Purely Economic Transaction Rights Tradeoff

To understand the rationale behind some of these immigration policies, as well as the public inertia against potential changes, one must understand that Hong Kong has historically been a jurisdiction where economic interests rule, which in turn drives the governments selective use of immigration policy in promoting economic growth. This overarching imperative manifests itself in immigration policy which attempts to maximize the benefit of FDH labour to the economy while minimizing social obligations owed to the FDH population.32 In that sense, it is helpful to analyze migrant worker flows within economic theory to understand why immigration policies respond to economic interests the way they do. Barry Cheswick suggests a helpful typology, grounding high-skilled labour, low-skilled labour, and capital within traditional economic production theory.33 Two major findings come out of the model. First, immigration of high-skilled labour reduces wages for local high-skilled labour (due to competition) but raises wages of local low-skilled workers (through increased demand), which decreases inequality of income.34 Furthermore, high-skilled labour immigration increases the productivity of capital (by better allocating resources), which has net positive benefits for the host country. Given these effects, high-skilled labour immigration is generally politically acceptable and encouraged. Immigration policy in Hong Kong reflects this as, like many other

31

Ibid. In an interview with a representative of Caritas Hong Kong, a Catholic charity, it was stated that their Asian Migrant Worker Social Service Project helpline received over four thousand calls from helpers, of which only 53 were given assistance to stay in Hong Kong to pursue their claims. 32 Mok, supra note 15 at 105. 33 Barry Cheswick, Immigration: High Skilled vs. Low Skilled Labor? (2011) IZA Policy Paper No 28 at 2-3. 34 Ibid at 4-5.

12

developed countries, political rights are offered as sweeteners as these migrants are given access to a full range of rights and privileges associated with permanent residency.35 The second finding is that immigration of low-skilled labour reduces wages for local low-skilled labour but enhances the productivity of local high-skilled labour (by freeing time for high-skilled employees to pursue knowledge-based, higher-margin work).36 This not only conflicts with the interests of the local Hong Kong low-skilled labour workforce, but also increases inequality of income as well. Therefore, when labour unions are strong and the local low-skilled labour workforce is able to organize politically, there is strong resistance to increased low-skilled immigration. This resistance is even more pronounced if low-skilled immigration also puts a burden on social services, which locals have to pay for through taxation.37 Immigration policy attempts to quell these concerns directly. An example of dealing with the negative competition effects on the local low-skilled labour workforce is the Employees Retraining Levy mentioned earlier in the paper.38 Broadly speaking, this scheme transfers money from employers (who are largely local high-skilled workers) and redistributes these resources into a retraining fund for local low-skilled workers. This mechanism therefore is a direct redistributive policy response to the competition effect of allowing more low-skilled migrants. The other economic consequence that is addressed by immigration policy is the social welfare burden of extending rights and privileges to low-skilled migrants workers who typically require these services more than high-skilled migrants. The economic costs of hosting low-skilled

35 36

Community Legal Information Centre, supra note 27. Cheswick, supra note 33 at 4. 37 Ibid. 38 Ibid at 8.

13

migrants are minimized by ensuring that they are a permanently transient population, unable to enjoy the full range of rights and privileges that are offered to the rest of the population.39 Institutional exclusion of these migrant workers, through policies such as the SEC, the two-week rule, and the permanent residency exclusion, allows Hong Kong to reap maximum economic benefit from FDHs at the expense of their social, political, and civil rights.40 On the other hand however, it was the mutual economic benefit of the transaction that drove the creation of the temporary migrant program in the first place. In other words, from the perspective of the Hong Kong government, migrant workers such as FDHs would not have been granted entry into Hong Kong but for the economic forces that necessitated such an arrangement. Therefore, the standard employment contract for FDHs is thought of as a strictly economic relationship; the cross-border migration aspect only an ancillary part of the transaction. It may be argued then that the unequal rights treatment of FDHs is a direct tradeoff for the opportunity to work in Hong Kong for relatively higher wages and that this arrangement is understood and consented to by FDHs right from the started.41 The major weakness in this conception comes to light when, despite the valiant efforts of policy makers, the relationship between FDHs and the rest of Hong Kongs society expands beyond the merely economic: when FDHs live and work in Hong Kong for such a lengthy period of time that they become part of the social, cultural, and political fabric of their host society. When this line is crossed and FDHs begin to demand equal rights, Hong Kongs identity as a society is put to the test. The Maids Residency Case is a consequence of this phenomenon.

39

Raymond KH Chan and Moha Asri Abdullah, Issues and Challenges of Foreign Workers in Asia (1999) 27:5 Asian Profile 441 at 442. 40 Ibid. 41 Bell and Piper, supra note 5.

14

The Maids Residency Case (Vallejos v Commissioner of Registration)

A. Facts and Background
A legal challenge to the FDH permanent residency exclusion contained in the Immigration Ordinance was something that had been contemplated by pro-FDH NGOs for a long time. They specifically identified permanent residency as a potential avenue to materially enhance the living standards of FDHs in Hong Kong. Obtaining the right of abode would allow FDHs freedom to obtain housing outside of their employers residence while abolishing any limits of stay, including the two-week rule. This would effectively remove the power of deportation from the employer, eliminating a major power imbalance that leads to abuse. The right to social welfare provision would provide a safety net for FDHs between employment stints while the right to vote would allow FDHs to have their own voice heard in local politics. Eventually, an applicant did come forward to challenge the PR exclusion provision: Evangeline Banao Vallejos, a Filipina Foreign Domestic Helper who came to Hong Kong in 1986 and subsequently worked for the same employer for over 20 years, was thrust into the spotlight. Over that span of time, she had become active at the local Church and conducted significant volunteer work in her spare time.42 Vallejos applied for permanent residency on April 22, 2008, but was rejected. She subsequently applied for a Hong Kong Permanent Resident Identity Card in December, but was again rejected by the Commissioner of Registration. She appealed this to the Registration of Persons Tribunal, which dismissed her case on June 4, 2009. Vallejos sought judicial review of the tribunal decision and applied for Legal Aid, eventually enlisting the pro bono support of the firm Barnes and Daly and well known Hong Kong barrister Gladys Li.

42

Benitez & Tse, supra note 4.

15

Leading the governments defense was David Pannick, a leading UK barrister and crossbencher in the House of Lords.43

B. Court of First Instance

The hearings took place from August 22nd to August 24th, 2011 and attracted intense public scrutiny. The courtroom was filled with spectators and hundreds watched from the lobby.44 Outside, protestors on both sides of the debate demonstrated outside the courthouse. Justice Johnson Lam of the Court of First Instance (CFI) announced his ruling on September 30th, 2011. In the judgment, Lam J identified that the case turned on the question of the proper interpretation of the Basic Law Article 24(2)(4), which states: [P]ersons 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 [would qualify for permanent residency].45 The ambiguous term in this Article is ordinarily resided. In other words, what is considered ordinary residence? What is considered non-ordinary residence? A subsequent amendment to the Immigration Ordinance defines categories of non-ordinary residence and thus excludes those categories of people from the right to permanent residency. Section 2(4)(a)(vi) specifically excludes FDHs:

43

Joseph Li, Right of abode battle heads into extra day, China Daily (24 August 2011) online: China Daily Clips <http://www.cdeclips.com/en/hongkong/fullstory.html?id=68991>. 44 Diana Lee & Mary Ann Benitez, Tight fit as court battle commences, The Standard (23 August 2011) online: <http://www.thestandard.com.hk/news_detail.asp?we_cat=11&art_id=114445&sid=33473637&con_type=3&d_st r=20110823&fc=1>. 45 Basic Law, Art 24(2)(4).

16

(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong[](a) during any period in which he remains in Hong Kong[](vi) while employed as a domestic helper who is from outside Hong Kong[.]46 Rather than simply clarifying the meaning of the term ordinarily resided, Lam J concluded that this exclusionary provision derogated from the right enshrined in Article 24(2)(4) of the Basic Law and thus held it to be unconstitutional. In coming to this conclusion, Lam J distinguished between the broad and generous interpretation that should be given to constitutional rights and freedoms as opposed to the straightforward statutory interpretation that should be applied in considering who fits into the definition of Hong Kong resident.47 The right to permanent residency enshrined in Article 24(2)(4) of the Basic Law was construed broadly, using a common law interpretative approach to define ordinarily resident. Borrowing the words of Bokhary PJ in the Hong Kong Court of Final Appeal (CFA) decision in Prem Singh v Director of Immigration48: once they manage to bring themselves within the plain terms of art.24(2)(4), their position ceases to be subject to administrative discretion and comes under constitutional protection [emphasis added].49 Through this common law approach, Lam J held that ordinarily residence had been defined in common law by the House of Lords in R v Barnet London Borough Council, Ex parte Shah50 as that of a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of

46 47

Immigration Ordinance 1971 (Cap 115), s 24(4)(a)(vi). Vallejos Evangeline Banao, also known as Vallejos Evangeline B v Commissioner of Registration and Registration and Another [2011] HKCFI 642 [Vallejos Court of First Instance Ruling] at para 79. 48 Prem Singh v Director of Immigration [2003] HKCFA 32. 49 Ibid at para 3. 50 R v Barnet London Borough Council Ex parte Shah, [1983] 2 AC 309 [Ex parte Shah].

17

long duration.51 This particular definition had been cited favourably by Hong Kongs Court of Final Appeal (CFA) in Fateh Muhammad v Commissioner of Registration52 and in Prem Singh. Another hurdle that the applicants argument faced was that of Article 154(2) of the Basic Law, which permitted the Hong Kong government to apply immigration controls on entry into, stay in, and departure from the HKSAR by persons from foreign states and regions.53 Lam J dealt with this using the Prem Singh approach that drew a clear line of demarcation between immigration controls and the verification of permanent resident status upon satisfaction of the requirements under Article 24(2)(4).54 In other words, once an FDH has satisfied the 7 years of continuous residence requirement, she is no longer subject to the immigration power of the legislature under Article 154(2) and instead is privy to constitutional protection under the Basic Law. For Lam J, the decision was then simplified to following the binding CFA precedents in Prem Singh and Fateh Muhammed in reaching the conclusion that immigration controls could not trump the constitutional right acquired under Article 24(2)(4). The weakness of Lam Js decision lay in its inflexibility and lack of a real justification analysis. While the argument could be made that the Ex Parte Shah test was the correct test under common law to apply, it was not clear why the Legislative Council could not explicitly override the common law interpretation, especially in light of Article 154(2) of the Basic Law which conferred to the Legislative Council this sort of power. Why could Article 154(2) of the Basic Law not trump or at least be read together with Article 24(2)(4) of the Basic Law? Furthermore,

51 52

Ibid at 343G-H. Fateh Muhammad v Commissioner of Registration, (2001) 4 HKCFAR 278. 53 Basic Law, Art 154(2). 54 Vallejos Court of First Instance Ruling, supra note 47 at para 140.

18

what if the common law test for ordinarily resident were to change; would the substance of the constitutional right to permanent residency change with it?

C. Court of Appeal
These weaknesses were pounced upon by Cheung CJHC of the Court of Appeal which, on March 28th, 2012, unanimously overturned the trial judges decision and found in favour of the Commissioner of Registration. Writing for the Court of Appeal, Cheung CJHC rightly pointed out that the use and interpretation of the Ex Parte Shah test was not without controversy and that the term ordinarily resident was not intended to have one static, unchangeable meaning over the entire duration of the Basic Laws operation.55 Even Lord Scarman in Ex Parte Shah admitted that the common law meaning was subject to the statutory framework or the legal context in which the words are used, indicating that the Shah would have to give way to the legislature in some cases.56 In light of the ambiguity inherent in the term ordinarily resident, Cheung CJHC ruled that the legislature was allowed certain flexibility in clarifying the ambit of the term so long as it did not step outside the bounds of its core meaning.57 The power of the legislature was particularly apparent in light of Article 154(2) of the Basic Law, which also had to be given constitutional weight. The judge then used Ex Parte Shah, Prem Singh and Fateh Muhammed as cases that helped demarcate what the core of the term ordinarily resident meant. He concluded that out of the ordinary must be construed in terms of the purpose for which the person resides or stays in

55 56

Vallejos Court of Appeal Ruling, supra note 6 at para 28-29. Ex Parte Shah, supra note 50 at 343G-H. 57 Vallejos Court of Appeal Ruling, supra note 6 at para 68.

19

Hong Kong when viewed from the perspective of society58, which added a subjective populist element to the analysis. Unsurprisingly, because most people in Hong Kong did not believe there was any problem with the FDH exclusion provision, Section 2(4)(a)(vi) of the Immigration Ordinance did not fall outside of the core meaning and was therefore constitutional.

D. Court of Final Appeal and the Standing Committee of the NPC

The applicants stated their intention from the beginning to take the case to the CFA if necessary, while certain elements in the Hong Kong government have threatened to seek an interpretation from the Standing Committee of the National Peoples Congress in Beijing should the CFA come down on the side of the applicants.59 In either case, it is expected that the litigation will continue for the foreseeable future.

Underlying Themes and Tensions

A. Constitutional Rights vs. Regulatory Immigration Power
The major difference between the judgments of the Court of First Instance and the Court of Appeal lay in the different weighting that is given between constitutionally protected rights and the power of the legislature to exercise immigration controls, which by nature involves discriminatory treatment. Which rights are to be protected and under what circumstances? Lam Js judgment clearly emphasizes the importance of constitutional rights and political justice over the legislative power of the state over immigration. His conception sees constitutional

58 59

Ibid at para 102. Colleen Lee & Diana Lee, Beijing or not, just get maids lawsuit sorted, urges Rita Fan, The Standard (15 August 2011) online: The Standard <http://www.thestandard.com.hk/news_detail.asp?we_cat=11&art_id=114149&sid=33394714&con_type=1&d_st r=20110815&fc=10>.

20

rights as a hard and fast check on legislative and executive power, even over immigration matters that are explicitly conferred to the legislature under Article 154(2) of the Basic Law. Lam J also attempts to separate the permanent residency and naturalization aspect of the case from immigration power as contemplated by Article 154(2), implying that because FDHs that otherwise qualify have lived and worked in Hong Kong for so long, as a matter of political justice they deserve equal access to their constitutional rights (e.g. right to abode, right to vote, right to social services), particularly when other foreign workers are able to claim PR after 7 years. In other words, immigration power can be used to create a situation of unequal rights temporarily, but should not be able to do so indefinitely. This reasoning is in line with Michael Walzers critique of temporary migrant programs as creating a permanent second-class citizenry, which leads to a train of subsequent abuses.60 On the other hand, no constitutional rights are absolute and rights violations can be justified in some instances. Even in Canada, where the Canadian Charter of Rights and Freedoms enshrines a progressive basket of legally enforceable rights, the Oakes test provides a mechanism that upholds legislation which prima facie violates these rights so long as they can be reasonably justified.61 While Hong Kong constitutional jurisprudence currently lacks a formalized justificatory process analogous to Oakes, jurists still must inevitably balance constitutional rights with other pressing legislative objectives in their reasoning. Cheung CJHC places more weight than Lam J on the legislatures power to create immigration policy as it sees fit. As mentioned, immigration policy in Hong Kong follows the main purpose of benefiting the economic interests of the local people. While FDH policy may be seen as
60 61

See Michael Waltzer, Spheres of Justice: A Defense Of Pluralism and Equality (Basic Books, 1983) at 53-65. th R v Oakes, [1986] 1 SCR 103, 26 DLR (4 ) 200.

21

violating certain constitutional rights, there is no doubt that these policies are rationally connected to the legislative objective. The key question is whether or not these rights violations are proportional to the benefit that would accrue to the local Hong Kong people. Again, there is no right answer to this question, but it requires the people of Hong Kong to make a stand on when the line is crossed at what point are economic interests trumped by concerns of political fairness? Furthermore, the constitutional question in Hong Kong is particularly cloudy due to its 1997 transfer to the Peoples Republic of China and its unique one country, two systems scheme.62 The Basic Law was created to ensure that Hong Kongs political and legal systems would largely remain unchanged after the handover. However, unlike other constitutional documents, the Basic Law is only effective for 50 years. In addition, final powers of interpretation are not vested with Hong Kongs Court of Final Appeal, but rather with the Standing Committee of the National Peoples Congress a body that does not share Hong Kongs common law tradition and is officially a legislative body instead of a judicial body. This arrangement puts into question whether constitutional rights in Hong Kong can ever be ultimately guaranteed. 63

B. Minority Interests vs. Majority Will

Even in liberal democratic societies such as Canada or the United States, which have relatively lenient naturalization policies and where minority citizens are privy to full legal rights, ethnic minorities still have a difficult time ensuring that their interests are protected. Constitutional

62

See generally Yiu-Chung Wong, One Country, Two Systems in Crisis: Hong Kong's Transformation (Hong Kong: Lexington Books, 2004). 63 See M Lucy Tan, From the Privy Council to the Court of Final Appeal: Will the Area of Non-Justiciability Be the Same in Hong Kong after July 1, 1997 (1997) 19 Loy LA Intl & Comp L Rev 413.

22

litigation (particularly rights litigation) is often a key avenue to ensure that the political tyranny of the majority does not trample over the rights of minorities.64 This problem is clearly exacerbated when a de facto permanent minority population is disenfranchised and subject to numerous restrictions. If rights litigation fails, then FDHs have very few options politically in which to protect their rights and interests. Minority interests are also often supported by NGOs and sympathetic civil society actors, but a key (and often overlooked) interest group who could potentially help FDHs politically are the home countries themselves (e.g. Indonesia, the Philippines, and Thailand). So far, government officials from the Philippines and Indonesia seem quite supportive of the Vallejos litigation. The Vice President of the Philippines, Jejomar Binay, called the Court of First Instance decision a step forward in recognizing the rights of migrants"65, while Gusti Made Arka, the Director-General for Workers Abroad at the Indonesian Ministry of Labour stated [w]e hope that this decision is seen as a benchmark and that other countries do the same".66 This general political support could be directed towards establishing bilateral treaties or institutions that govern migration schemes and help protect FDH rights both at the point of recruitment and after arrival in the host country.

64

See generally Lani Guiner, Tyranny of the Majority: Fundamental Fairness in Representative Democracy (Free Press, 1995). 65 Nancy C Carvajal & Jerome Aning, Manila welcomes HK court ruling on Filipino maid Evangeline Banao Vallejos, Philippine Daily Inquirer (1 October 2011) online: Philippine Daily Inquirer <http://globalnation.inquirer.net/14269/manila-welcomes-hk-court-ruling-on-filipino-maid-evangeline-banaovallejos>. 66 AFP, Indonesia Welcomes Hong Kong Residency Ruling, AFP News (30 September 2011) online: Jakarta Globe <http://www.thejakartaglobe.com/news/indonesia-welcomes-hong-kong-residency-ruling/468708>.

23

C. National Identity and Prospect of Backlash

Naturalization (including permanent residency) policy is ultimately a reflection of national identity and membership. The policy decisions of individual countries regarding naturalization depend heavily on the identity interplay between resident citizens and resident non-citizens. Because full inclusion in group membership requires acceptance on the part of individual as well as other members of the group67, it should be recognized that the incumbent home population has a major say in whether or not resident non-citizens (e.g. FDHs) will be treated on relatively equal footing or shunted aside in domestic issues. Hong Kong, like most other East Asian jurisdictions (such as Mainland China, Japan, and Korea) has a strong sense of national identity based on ethnic and historical connection.68 Thus, although there remain elements of the jus soli influence from the British colonial system, Hong Kongs naturalization policies lean toward jus sanguinis and in particular, offer preferential treatment towards people of Chinese descent.69 For Hong Kongers in general, they simply do not see FDHs as part of their own political community and therefore see little reason to offer them full permanent residency rights, such as the right to vote. Unlike liberal democracies in the West that have either a multiculturalist or melting pot approach to integrating ethnic minorities, post-1997 Hong Kong as a political community is unequivocally a Chinese jurisdiction. Foreign high-skilled workers are allowed

67

See generally John Turner and Penny Oakes, The significance of the social identity concept for social psychology with reference to individualism, interactionism and social influence, 25:3 British Journal of Psychology (1986) at 237-252. 68 See generally Gilbert Rozman, East Asian National Identities: Common Roots and Chinese Exceptionalism (Palo Alto: Stanford University Press, 2012). 69 See Government of Hong Kong, Application for Naturalisation as a Chinese National (March 2010) online: Government of Hong Kong <http://www.gov.hk/en/residents/immigration/chinese/naturalisation.htm>; see also Frank Ching, Nationality Law in Hong Kong, The Korea Times (14 March 2012) online: The Korea Times <http://www.koreatimes.co.kr/www/news/opinon/2012/03/137_106919.html>.

24

to obtain permanent residency, but this arrangement is only tolerated since it is expected that they can financially sustain themselves while offering economic benefits to the SAR as a whole.70 Through its FDH policies, the Hong Kong public has made its intention clear that it does not want FDHs and their dependents to become part of the permanent population and/or its national community. Therefore, FDHs and their supporters must be very careful about political backlash even if the Vallejos litigation is successful in allowing FDHs to obtain permanent residency. This concern was emphatically brought forward by Daniel Bell71 and can be readily seen in Taiwans policy of issuing temporary migrant workers work visas only for up to 6 years, to ensure that these migrant workers can never qualify under the continuous residency duration requirement.72 Immigration policy is undoubtedly vested with enough discretionary power to find creative solutions in impeding FDHs from naturalizing in Hong Kong. Ironically, such a situation may, on the whole, be detrimental for incoming or potential FDHs looking for greater economic opportunity.73 Clearly then, there are limits to what the Vallejos case and similar rights litigation can do on its own, without the popular support of the local Hong Kong population. It may be the case that the only way equal treatment for FDHs will materialize is from the bottom-up; a concerted attempt through public discourse, education, and public service campaigns to change the hearts of the people in order to truly respect the ideals of equality, social justice, rule of law, and human rights.

70 71

Cheswick, supra note 33 at 8-9. Daniel A Bell, Employers and Domestic Workers: A Confucian Approach, Dissent Magazine (Winter 2008) 91. 72 Bell and Piper, supra note 5 at 210. 73 Ibid at 216.

25

Conclusions
The Vallejos case and the struggle of FDHs in Hong Kong to obtain the right to acquire permanent residency resulted from the desire of an institutionally marginalized group to protect their rights, stem abuse, and improve their overall living and working conditions in a jurisdiction that merely tolerates their presence. However, while the reasons for the legal challenge may be relatively straightforward, the case brings to the forefront complex and difficult underlying tensions and conflicts. The tension between economic interests and political justice is a clear one. Temporary migrant programs (which include foreign domestic helper policies) are premised on a type of rightstradeoff where certain political, civil, and socioeconomic rights are given up for the privilege to enter a country and work for higher wages than are possible back home. A major problem presents itself when the work is no longer temporary. Like Evangeline Banao Vallejos, over a third of FDHs in Hong Kong have been continuously resident for over 7 years. In many cases, FDHs have been resident for decades and have children that are Hong Kong PRs and have, for all intents and purposes, taken Hong Kong as their home.74 To continually deny these people the right to PR perpetuates the much abhorred condition of a permanent second-class citizenry.75 On the legal side, constitutional rights and particularly those rights that manifest the principles of equality before the law, minority rights, and anti-discrimination bump up against regulatory immigration power and its mandate to control migration flows for the benefit of the local population. The line that balances these two forces must be drawn somewhere, but as the

74

Walter Jennings, Domestic Helpers in Hong Kong: 25+ years of service, but no right to abode, Facing China (22 February 2012) online: Facing China Blog <http://facingchina.me/2012/02/22/domestic-helpers-in-hong-kong-25years-of-service-but-no-right-of-abode/>. 75 Waltzer, supra note 60.

26

Vallejos judgments demonstrate, jurists are not in agreement about where that line should be drawn. A detailed account of potential solutions is beyond the scope of this paper, however some of them bear mentioning in the hopes of stimulating further research and discourse. Some policy recommendations include: allowing right of abode to FDHs but implementing slightly more stringent requirements, engaging source countries in bilateral agreements that better protect migrant worker rights, abolishing the two-week rule and returning to a fixed-term renewable work visa with the right to switch employers, increasing government resource funding for NGOs to provide a more effective welfare safety net in lieu of granting the right to social welfare, and public education campaigns that aim at spreading awareness of FDH-specific issues and challenges.76 In the end however, immigration policy is one of the areas of law and policy that are highly reflective of a populations conception of national identity and group membership. If this is indeed the case, then any sort of legal or policy change committed without the understanding and support of the local people will at best, be marginally effective and at worst, provoke populist backlash and resentment against FDHs. The Maids Residency Case in Hong Kong is just one battle in a broader, collective, and ongoing struggle by migrant workers around the world to achieve true equality of opportunity and respect for human rights.

76

For further discussion on potential legal and policy recommendations, see Mok, supra note 16 at 112-116.