Case regarding foreign domestic helpers has serious consequences and the mistaken ruling must be rectified
The Court of First Instance of the High Court made a decision early this month on the judicial review of the right of abode claimed by foreign domestic helpers. The ruling of the court was that the Immigration Ordinance has contravened the Basic Law. This case regarding the right of abode of foreign domestic helpers is a matter of serious consequences. Firstly, it concerns the issue of whether the legislative intent behind the drafting of the Basic Law has to be respected. Secondly, the ruling may lead to an influx of tens of thousands of foreign domestic helpers and their families into Hong Kong, causing a burden that Hong Kong public resources cannot bear. The mainstream opinion, besides supporting the government to appeal, also urges the government to seek an interpretation of the Basic Law by the National People's Congress. The government should prepare for the worst and in due course request an interpretation by the National People's Congress once it loses the appeal so that the problem can be solved once and for all.
When the Basic Law was drafted in 1985, the Sino-British Joint Liaison Group had discussed the definition of the right of abode and reached a consensus. The consensus was incorporated into the Opinion on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Opinion) passed on 10 August 1996. Later, the Provisional Legislative Council amended the Immigration Ordinance in a mid-night legislation just before the resumption of sovereignty. It was specified that the period of stay in Hong Kong by foreign domestic helpers, illegal immigrants, overstayers, persons sentenced to imprisonment by a court and foreign consulates would not be counted into the seven year period of ordinary residence in Hong Kong, which is a prerequisite for applying for the right of abode. This is a clear expression of the legislative intent behind the definition of the right of abode in the Basic Law. The ruling by the Court of First Instance is inconsistent with the legislative intent of the Basic Law, and will create tremendous impact to the public policies of Hong Kong. Therefore, the mistaken ruling must be rectified.
■Translation by 東明