It has been reported that five Filipino domestic helpers who have worked for more than seven years in Hong Kong are proceeding with a judicial review claiming their permanent resident status in the High Court of Hong Kong. They assert that the present restriction in Immigration Ordinance passed by the Legislative Council, signed by the Chief Executive and submitted to the Standing Committee of the National People's Congress for the record violates Article 24(2)(4) of the Basic Law.
Is the present restriction not in conformity with the Basic Law? I do not think so. It is provided that "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 before or after the establishment of the HKSAR" shall be declared permanent residents of the city. If Filipino domestic helpers consider they fall within this category, then they should be subject to three conditions:
(a) they have entered Hong Kong with a valid travel document;
(b) they have ordinarily resided in Hong Kong for a continuous period of not less than seven years; and
(c) they have taken Hong Kong as their place of permanent residence.
Those conditions must all be fulfilled, and all conditions are interrelated. Notwithstanding they have physically resided or been present here for more than seven years, they may not satisfy the other two conditions. When they have entered Hong Kong with valid travel documents, they have not taken Hong Kong as their place of permanent residence as they work here to support their families in other places. They are applying for a working permit visa, and such an application can be treated as a proof of their original intention not to take Hong Kong as their place of permanent residence.
As their visas have also been issued with the imposition of a limitation of stay, they would not enjoy the right of permanent resident status even though they have worked here for more than seven years. Even by literal interpretation, those conditions are not satisfied.
The Basic Law is, however, a constitutional document. Its interpretation should not only simply be based on literal interpretation, but also be subject to purposive interpretation. It will be immature to declare the local legislation unconstitutional before both interpretational criteria are met. From the purposive interpretation viewpoint, it is unassailable that the purpose of Art 24(2)(4) of the Basic Law is not to allow thousands and thousands of foreign domestic workers to acquire the claimed status, or otherwise the said provision would have been similar to Art 24(2)(2) in which there are no requirements for valid travel documents and place of permanent residence for Chinese citizens.
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