Pinoy maids’ bid for HK residency reaches highest court

HONG KONG – The bid of Filipino helpers for permanent residency rights has reached the Court of Final Appeal (CFA), the city’s highest court.

After a three-day hearing on the foreign domestic helper’ (FDHs) battle for right of abode, the CFA reserved its ruling on the landmark case.

Government lawyer David Pannick asked the five-man bench to ask Beijing to clarify the Basic Law’s provision on residency.

In December last year, Secretary for Justice Rimsky Yuen explained that “the government, under the Hong Kong judicial system, requests in accordance with Basic Law 158(3) the CFA to consider whether to refer to the National People’s Congress Standing Committee (NPCSC) the legal issues on the 1999 Interpretation for clarification.”

The Basic Law is Hong Kong’s mini Constitution.

Pannick stressed that the NPCSC has the power to interpret the law “from time to time.”

Michael Fordham, counsel for Evangeline Vallejos and Daniel Domingo, argued that the lower court was correct when it declared as unconstitutional the Immigration Ordinance that excludes FDHs from the category of ordinary residents.

Fordham argued that it is unconstitutional to exclude FDHs as a class from the category of ordinary residents, adding that the “blanket exclusion” prevents those who may be qualified to apply for permanent residency.

He pointed out that Vallejos had been living and working here for 22 years and had integrated into the local community. Domingo, on the other hand, raised his family here and had only been absent in Hong Kong for seven days over a 12-year period.

He stressed that the two Filipinos had been ordinarily residing here for the settled purpose of employment.

“What is left is the exclusion of the impugned provision of the Immigration Ordinance that takes as a class the foreign domestic helpers out of what is the ordinary and natural meaning of ordinary residence,” Fordham said.

The landmark judicial review stemmed from the legal challenge on the Immigration Ordinance’s provision that excludes FDHs from the category of persons who may apply for permanent residency rights.

The provision states that “a person shall not be treated as ordinary resident in Hong Kong while employed as a domestic helper who is from outside Hong Kong.”

The arguments for the helpers’ bid for right of abode centered on the constitutional criteria laid out in the Basic Law.

It states that permanent residents include “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.”

However, the government’s arguments are focused on the NPCSC’s power to interpret the Basic Law.

Pannick argued that the legislature holds the power to define and refine provisions in the Basic Law and identify exceptional categories of persons that may not be considered “ordinary residents” due to the nature of their entry and stay in the city.

He noted that FDHs “don’t form part of the permanent population” since they are “admitted here for the specific purpose of addressing labor shortage.”

He added that FDHs are subject to specific conditions of stay that make their residence “exceptional, special and far from regular in nature.”

These conditions include the performance of domestic duties only, live-in arrangement with their employers, and home leave before the start of a new employment contract.

As the landmark case of the helpers’ right of abode reached the top court, the Asian Migrants Coordinating Body-International Migrants Alliance (AMCB-IMA) expressed hope that the judicial body will rule in their favor.

Landmark case

In June last year, the Court allowed Vallejos and Domingo to continue their fight at the CFA.

Vallejos was first to challenge the exclusion of FDHs in the category of persons eligible to apply for right of abode. She won her case at the Court of First Instance in September 2011.

Court of First Instance Judge Johnson Lam ruled that the Immigrations Ordinance’s exclusion of FDHs from the benefit of the constitutional right to permanent residency runs “inconsistent” with the Basic Law.

Domingo won his petition in November 2011.

But the Court of Appeals reversed those decisions in March and ruled that the Immigration Ordinance that denies permanent residency rights to FDHs is constitutional.

‘No placement policy’

Meanwhile, local recruiters expressed willingness to lift the moratorium on deployment of FDH to Hong Kong if their foreign counterparts would agree to a “no placement fee” policy.

Alfredo Palmiery, Society of Hong Kong Accredited Recruiters of the Philippines (SHARP), said they have started renegotiation with Hong Kong agencies to address the high recruitment cost.

“Once a greater majority agree to the no-placement fee arrangement, we will immediately lift the moratorium and resume our hiring and placement of household service workers to Hong Kong,” Palmiery said, adding that the response of the Hong Kong counterparts seemed to be positive.

A few days ago, SHARP declared a moratorium and ceased from deploying FDHs to Hong Kong to dramatize their protest over the government’s policy.

The group said the moratorium could result in 35,000 FDHs losing potential employment and earnings.

According to Palmiery, local recruiters are having difficulty complying with the government’s strict deployment regulations.

He said the high recruitment cost being charged by Hong Kong agencies is killing the Philippines-based recruitment agencies.

At this time, Hong Kong is the fourth favorite destination of overseas Filipino workers (OFWs).

In 2011, over 130,000 new and re-hires were deployed by private recruitment agencies to Hong Kong, which pays the highest salaries for domestic helpers.

Palmiery admitted that the moratorium would have negative impact and the first to feel these consequences will be the licensed overseas employment services providers.

“Financially, the cost of abandoning and losing a major labor market is huge. A moratorium may also have socio-economic effects and could affect friendly bilateral relations between Hong Kong and the Philippines,” he said.

However, he said, they have no other option but to stop deployment rather than risk their license, which can be suspended for violation of the recruitment violations.

The Department of Labor and Employment (DOLE) said they respect the decision of SHARP, but the government is unlikely to suspend implementation of the no placement policy.

But Labor Secretary Rosalinda Baldoz said the Philippine Overseas Employment Administration (POEA) is set to reassess Hong Kong as market for FDHs.