Motion on “Opposing Permanent Residence for Foreign Domestic Helpers”(2011.10.19)

Hon KP Chan on Motion on Opposing Permanent Residence for Foreign Domestic Helpers

•    Like most people in Hong Kong, I am not a legal expert and find it hard to understand why an issue that is clearly written into the Laws of Hong Kong, spelt out in the Basic Law and already endorsed by the former Sino-British Joint Liaison Group can be controversial.

•    Laws are enacted to accomplish policies that have been deliberated and agreed.  Either before or after reunification, the Government has no intention to grant permanent residence to foreign domestic helpers.  Nobody has ever queried this policy.  Even foreign domestic helpers have rarely, if ever, raised such request themselves.  After reunification, the immigration law categorically excludes any period of stay of foreigners as domestic helpers from the definition of normal residence in the territory.  It is a proven arrangement.  Foreign domestic helpers knew well before arrival that they are not eligible to apply for residence in Hong Kong by virtue of their conditions of stay during employment.

•    The recent judgment reflects that the High Court Judge fails to take into account the original intent of the Basic Law.  Apparently, it illustrates certain incompatibility of Common Law and Continental Law.  Therefore, this is a case of conflict of legal principles, not policy debate.

•    Put aside letters of the law, both the stances of the Government and public opinion are unambiguous.  They disagree to granting residence to foreign domestic helpers.  If there were insufficiency and ambiguity in the law, holes should be plugged.

•    If Hong Kong had ample land and resources, we would open the door to those who come and contribute.  Unfortunately, we do not have such luxury.  At present, there are 125,000 foreign domestic helpers in Hong Kong who meet the seven years of stay threshold.  Together with their immediate families, around 400,000 people would be eligible to apply for residence and many of them might even seek public assistance.  Assume only a small number would come eventually, their implications are still significant and immediate.  Public housing, medicine and education would be all under stress.  Our grassroots would have to live with reduced welfare.  Taxpayers would have to foot the extra bill.

•    The Amendment to the original Motion states that foreign domestic helpers do not acquire residence by default and have to go through four litmus tests.  However, as former Secretary for Security and fellow Member, the Hon Mrs Ip says, these tests are far from robust and might be ruled unconstitutional.  They are unhelpful.  If their rights to apply for residence were reaffirmed by letters of the law and approval process were used to refuse their entry or stay, the Government would face numerous challenges in Court.

•    I am convinced that the Government has made no policy mistake and its position is not inconsistent with the public.  If there were no better way, I would support the direct and expedient path of submitting to the National People’s Congress for interpretation of the Basic Law.  It is not in our interest to allow the matter to drag on.  If the submission were only made after judicial means are exhausted, it would be even more damaging.

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