HK High Court Overturns Immigration’s Decision On OFW

by Ina Alleco R. Silverio

MANILA — Celebrate the small victories and continue to fight for migrants’ rights in Hong Kong.

The Mission for Migrant Workers (MFMW) in Hong Kong hailed the positive decision of the Hong Kong High Court on the case of a Filipino domestic helper who applied for permanent residency in the former British protectorate. Last week, after a judicial review of the case,the High Court decided to overturn the Immigration Department’s denial of right of abode for foreign domestic workers who have worked in HK for seven or more years.

The court granted OFW Vallejos Evangeline Banao the right to apply for residency under the Basic Law, Hong Kong’s constitution. Banao has lived in Hong Kong since 1986. Her lawyer Gladys Li argued that under the constitution of Hong Kong, non-Chinese nationals who have resided in HK for seven years on valid travel documents are entitled to permanent residency. This rule, she argued, should not exclude others on race or religious grounds if they have lived in HK for the prescribed period.

In the decision, Hong Kong High Court Judge M. H. Lam said it is unconstitutional to deny foreign maids the right of residency even though many of them were employed only on short-term contracts, many of which are repeatedly renewed.

“On final analysis, these features, whether taken individually or collectively, cannot take a foreign domestic helper’s residence out of the concept of ordinary residence,” Lam stated in the decision.

In a statement, the MFMW said the decision was a ” positive step” toward the promotion of better treatment for foreign domestic workers. Norman Carnay, the group’s program officer, said foreign domestic workers (FDWs) have been integral to Hong Kong’s development.

“We hope that this decision will jumpstart the reevaluation of other policies and practices in Hong Kong that marginalize FDWs,” he said.

HK government disappointed with decision

Not everyone has been pleased by the decision. Hong Kong chief executive Donald Tsang told reporters, shortly after the verdict was delivered, that he was “personally disappointed.”

Tsang said the HK government is prepared for any adverse effect of the decision. According to reports, politicians are concerned that there may be a need to consult the Chinese government in Beijing to rewrite rules on migrants. He also said the decision may cause an influx of migrants to HK.

In response to these fears, Carnay said the HK government should not use the High Court’s decision to create policies that will negate the positive step toward the full recognition of FDWs as part of the people of Hong Kong. Among the possible steps the Tsang administration might implement is to put a cap on the number of contracts for FDWs.

When sought for comment, the Philippine government said it is to early to rejoice over the decision, saying that the ruling was not yet final.

Deputy presidential spokesperson Abigail Valte said the Hong Kong government may yet appeal the case.

Carnay appealed to the HK public to see the decision as beneficial to the whole society.

“We hope that the negative sentiments against migrants due mainly to the doomsday scenarios being painted if FDWs are granted the right of abode will not be resurrected and fanned,” he said. He also expressed support to local organizations and individuals who have served as the voices of reason amid what he said as the hysteria that “narrow-minded politicians hoped to create.”

Under Hong Kong’s constitution, foreigners are entitled to permanent residency if they have lived in HK for a continuous period of at least seven years. With permanent residency comes the right to vote and to access welfare and other services. Prior to the High Court’s landmark decision, the immigration ordinance on foreigners’ right to abode excluded 290,000 foreign domestic workers. Half of the number of 146,000 are from Indonesia while the rest are from the Philippines. According to reports, 117,000 of these FDWs have been continuously working in Hong Kong for more than 7 years. They are now potentially eligible for residency if the court’s decision is anything to go by.

Immediately set up mechanisms to implement new decision

For it’s part, the Asian Migrants Coordinating Body (AMCB) said that with the High Court’s decision on the right of abode issue, there was reason to hope that the decades of injustice against FDWs will end.

“The court’s ruling has affirmed the stand of FDW groups that discrimination does exist in Hong Kong. We commend the FDWs who have taken up the cudgels of the judicial review and the organizations that have expressed support to the fight,” the group said.

AMCB spokesperson Eni Lestari called on the HK government to immediately set up the mechanisms required to uphold the court’s ruling.

“Any delaying tactic only worsens the injustice already being done to FDWs and will show that it is the government itself that lets discrimination prevail in Hong Kong. We also call on self-serving politicians not to use the court ruling to drum up more hate against migrants among the public. Sobriety and respect for the court’s decision should be made to rule,” she said.

Dolores Balladares, also of the AMCB, said they were disappointed with the lack of action of the government to quell the tide of anti-migrant sentiments that swelled when the news of the judicial review hit the headlines.

“We were even more astounded when government officials themselves and some politicians were the ones who spewed out false and exaggerated scenarios of doom to influence public opinion against granting the right of abode to FDWs. This should stop; the HK government should to take steps to prevent escalation of anti-migrants ideas,” she said.

Both the AMCB and the MFMW said the right of abode issue is only one battle won in the war against discriminatory policies in Hong Kong.

“There still exist the New Conditions of Stay, the exclusion from the statutory minimum wage, the mandatory live-in employment arrangement and a host of other policies that show that FDWs are treated not the same as all the other workers in Hong Kong,” Lestari said. (

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