Feature Article 3 - Advising on Right of Abode Issues

Feature Article 3

Article 24 of the Basic Law defines residents of the HKSAR to include permanent residents and non-permanent residents. There are six categories of persons who are entitled to permanent residence under Article 24. Apart from enjoying other rights and freedoms guaranteed to all HKSAR residents in Chapter III of the Basic Law, permanent residents enjoy the right of abode in the HKSAR; have the right to vote and the right to stand for election, and may serve in government departments as public servants.

From time to time, the Basic Law Unit (BLU) of the Legal Policy Division is called upon to provide advice on whether a person is a permanent resident and is entitled to the right of abode. Examples of such advice include issues arising from the cases of children born of Mainland mothers whilst in the HKSAR whose husbands are not HKSAR residents (Type II children), and foreign domestic helpers in the HKSAR.

Type II children

Article 24(2)(1) of the Basic Law stipulates that Chinese citizens born in the HKSAR before or after the establishment of the HKSAR shall be HKSAR permanent residents. In July 2001, the Court of Final Appeal (CFA) held in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 that Chinese citizens born in the HKSAR are permanent residents regardless of the residential status of their parents. The Immigration Ordinance (Cap 115) was accordingly amended in 2002 to bring the law in line with the CFA decision.

The number of Type II children has risen sharply in the past decade (from 629 in 2001 to 35 736 in 2011), giving rise to unintended and unforeseen consequences especially in the social and economic contexts. There is public concern about the impact of birth tourism on the HKSAR’s infrastructure and resources and the long-term sustainability of the situation. Since 2012, administrative measures have been rigorously deployed by the Government to deal with the problem, including announcement by the Chief Executive of a zero delivery quota policy for Mainland pregnant women in 2013. On the whole, these administrative measures are working effectively. The Department of Justice and the Security Bureau will continue to carefully examine appropriate and legally viable options to resolve the Type II children issue. However, it is pertinent to note that each option would have pros and cons and it is necessary to assess possible impacts inherent in each option. In this regard, BLU counsel provide advice to ensure that the options under consideration are consistent with the Basic Law.

Foreign domestic helpers

Article 24(2)(4) of the Basic Law provides that persons not of Chinese nationality who have entered the HKSAR with valid travel documents, have ordinarily resided in the HKSAR for a continuous period of not less than seven years and have taken the HKSAR as their place of permanent residence before or after the establishment of the HKSAR shall be permanent residents of the HKSAR.

In Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, the two appellants were Philippine nationals who entered the HKSAR for employment as foreign domestic helpers (FDHs) and have resided in the HKSAR for more than seven years as FDHs. They challenged the constitutionality of section 2(4)(a)(vi) of the Immigration Ordinance which provides that a person employed as a FDH who is from outside the HKSAR is not to be treated as “ordinarily resident” in the HKSAR and so cannot become a permanent resident of the HKSAR.

The appellants contended that they were covered by the natural and ordinary meaning of the words “ordinarily resided” in Article 24(2)(4) and the restriction in section 2(4)(a)(vi) of the Immigration Ordinance was in breach of Article 24(2)(4) and unconstitutional. Their argument was accepted by the Court of First Instance but rejected by the Court of Appeal. The CFA dismissed their appeals. The judgment which each member of the bench had contributed was handed down on 25 March 2013. The CFA decided by a majority that the residence of FDHs, as a class, in the HKSAR did not come within the meaning of “ordinarily resided” in Article 24(2)(4). FDHs were not admitted for settlement, and accordingly, FDHs were not eligible for right of abode in the HKSAR under the Basic Law.

The HKSAR has a legal system different from the rest of the Mainland, and it enjoys independent judicial power, including that of final adjudication. Our courts apply the common law in the interpretation of laws, including the Basic Law, in the adjudication of cases. Counsel of the BLU apply the same approach when advising the Government on legal questions involving the Basic Law. However, in order to understand and interpret the Basic Law properly, the role of Article 158 in the constitutional framework of the HKSAR must be correctly understood. The Hon Sir Anthony Mason AC KBE, NPJ describes it as follows:

“The conjunction of a common law system under a national law within the larger framework of Chinese constitutional law is a fundamental aspect of the Principle ‘one country, two systems’. Article 158 is the link between the two systems.” (“The Rule of Law in the Shadow of the Giant: The Hong Kong Experience”, [Vol 33:623 2011] Sydney Law Review 623)

In the FDH case, apart from raising some common law arguments, a fall-back submission was made during the hearing before the CFA on behalf of the respondents that the Court should seek an interpretation of Article 158 of the Basic Law from the Standing Committee of the National People’s Congress pursuant to Article 158(3) of the Basic Law in the event their primary arguments are not accepted. The Court ultimately did not find it necessary to seek such an interpretation, since the respondents’ primary argument was upheld. Despite criticisms from the appellants’ legal representatives, the CFA (when dealing with the issue of costs) pointed out that raising the point of Article 158 interpretation did not constitute any abuse as it was contingently relevant in the event the Court was unable to dispose of the appeal on the common law arguments put forward by the respondents.