The case has sparked widespread debate as fears are being raised concerning a potential huge influx of entitled new residents. Those viewing the move as a necessary and normalising one are in the minority.
*“This is a big victory over injustice and discrimination perpetrated by Hong Kong against foreign domestic workers,”* said Eman Villanueva, leader of the United Filipinos in Hong Kong (UNIFIL), which backed Vallejos.
The government has 28 days to appeal. Secretary for Security, Mr Ambrose Lee, at a media session on the judicial review, said: *“Today, the Court of First Instance handed down judgement on the judicial review on right of abode lodged by a foreign domestic helper. The Court of First Instance has ruled that section 2(4)(a)(vi) of the Immigration Ordinance (i.e. foreign domestic helpers are not treated as ordinarily resident in Hong Kong) is inconsistent with Article 24(2)(4) of the Basic Law.*
*“The Government respects but is disappointed with the ruling of the Court of First Instance,”* he continued. *“The Government, with respect, firmly believes that the constitutionality of the relevant provision of the Immigration Ordinance should be upheld. After obtaining legal advice, the Government has decided to appeal against the ruling and will take the necessary steps open to it to seek to ensure that the appeal is heard expeditiously.”*
As the spokesman for the Humanist Association of Hong Kong besides being the writer of this article, I have to view the proceedings from a particular viewpoint and do not pretend the following is unbiased – we are not in favour of the government stand. The government seems to have taken this course of action after noting the responses of employer associations, the main political parties and the populist politicians. This elitist stand positions the government to the right and against migrant unions and human rights organisations.
A pro-government political party excitedly warned there would be an influx of as many as 500,000 people – including children and spouses of foreign maids – and that would cost HK$25 billion in social welfare spending. The Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) also forecast unemployment could jump from the current 3.5 per cent to 10 per cent!
In a ruling on January 29, 1999, Hong Kong’s top court decided that mainland children that were born before their parents became Hong Kong permanent residents, were entitled to right of abode. But the NPC Standing Committee subsequently overturned the ruling, in its first interpretation of the Basic Law. This episode also indicated unfounded zenophobia by the establishment.
Permanent residency means that a person can remain in Hong Kong indefinitely, vote and stand in elections. The critics are saying granting residency to domestic helpers will strain the provision of health care, education and public housing. On the other hand the Chief Executive Donald Tsang stated in his annual policy address that he wants to increase the local population size to balance out the aging effect and to offer international firms a wider range of employable workers.
Mainstream politicians are warning that granting foreign domestic helpers permanent residency would allow them to bring their children and other relatives into the city, making demands on education and housing. Tourism-sector lawmaker Paul Tse Wai-chun has set up a concern group to oppose residency for helpers, and launched a signature campaign in Kowloon Bay.
Non-Chinese nationals can obtain residency after working in Hong Kong for seven years, while to date immigration rules exclude domestic helpers from seeking permanent residency – this is the anomoly. Astute lawyers argue that this is discriminatory and is not according the Basic Law, Hong Kong’s mini-constitution.
Normalisation of their rights will pave the way for Hong Kong to give equal treatment to migrant workers, this is our view. The Mission for Migrant Workers carried out a survey among the migrant community and it was noted that getting the right of abode was not necessarily a priority for many domestic helpers. The more pressing concerns were wages and working conditions.
There are more than 300,000 foreign domestic helpers in Hong Kong, mainly from Indonesia and the Philippines. It is likely that around 120,000 have lived in Hong Kong for more than seven years. They are commonly required to live with their employers and cannot accept other jobs. Without the right to permanent residency, if a domestic worker is dismissed by an employer, another domestic help job must be found within two weeks or its goodbye Hong Kong!
The present unfair conditions of employment mean the migrant worker is forced to accept poor work situations without redress, or, as in instances where the worker has quit, he or she cannot earn an income for the duration of the period it takes to hear a case under the Labour Tribunal. This means they are prone to be taken advantage of or live loosely just to survive.
Hong Kong’s domestic workers have a guaranteed minimum wage of HK$3,740 ($480; £308) a month with one day off each week. Officially, this means their working conditions are better than in other countries in Asia that have large numbers of domestic helpers, such as Singapore. Again though, many employers don’t honour that contractual point and when it comes to working hours there is a lot of abuse.
Gusti Made Arka, Indonesia’s labour ministry director-general of workers abroad, on hearing the news told the press that his ministry has always considered Hong Kong one of the best places for their workers. The hope is that this decision is seen as a benchmark and that other countries do the same.
Anis Hidayah, director of Migrant Care in Indonesia, said that although they received few cases of abuse from Hong Kong, underpayment was a regular problem.
The ruling today makes for a more even playing field, offers more choice. The government is taking a short-sighted and blinkered view that is not based on any objectivity just silly fears of the mis-informed.
