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On September 30, 2011, the Hong Kong Court of First Instance
issued a landmark decision concerning the rights of foreign
domestic helpers in Hong Kong. The court found that a law
prohibiting foreign domestic helpers from acquiring permanent
residency in Hong Kong was unconstitutional.
Currently, foreign nationals who have been ordinarily resident
in Hong Kong for a period of seven continuous years have the right
to seek permanent residency, provided they have entered with valid
travel documents.1 However, the Hong Kong Immigration
Ordinance specifically restricts foreign domestic workers from
satisfying this requirement by declaring that "a person shall
not be treated as ordinarily resident in Hong Kong while employed
as a domestic helper who is from outside Hong
Kong."2
It is estimated that there are approximately 292,000 foreign
domestic helpers currently living in Hong Kong. Of these, it is
believed that some 117,000 would, based on this ruling,
automatically acquire the right to apply for permanent residency,
having met the requirement of living in Hong Kong for a continuous
period of at least seven years. Permanent residency in Hong Kong
grants individuals various rights, including the right to remain
indefinitely in Hong Kong without a visa and access to the benefits
system. Without permanent residency, all foreign domestic helpers,
if dismissed by their employers, must find another job in the
domestic service sector within two weeks or they have to leave Hong
Kong. This two week requirement applies to all foreign domestic
helpers regardless of how long they have lived in Hong Kong.
This issue has raised widespread debate, with commentators
warning that this change in the law could put the Hong Kong social
welfare system under immense strain, since all persons up to age 21
born to permanent residents also qualify for permanent
residency.3 In addition, foreign domestic helpers from
China would also be permitted to bring their children into Hong
Kong.4 Human rights organizations have welcomed the
decision, stating that they are hopeful that it will pave the way
for migrant workers to be guaranteed equal treatment. However, the
Hong Kong government has expressed disappointment in the ruling,
announcing on October 4, 2011 that it would appeal the decision to
the Court of Appeal. The government has stated that it will not
process any applications for Right of Abode from foreign domestic
helpers until a higher court makes a definitive ruling, noting that
it is in the public interest for a final determination to be
reached before any individual decisions are made. It is anticipated
that this case may be escalated to the Standing Committee of the
National People's Congress in Beijing, the final interpreter of
Hong Kong's constitution. The Working World will keep readers
updated on developments as the case moves through the courts.
Footnotes
1 Article 24(4) of the Hong Kong Basic Law
2 Section 2(4)(a)(v) of the Immigration Ordinance (Cap
115)
3 Article 24(5) of the Hong Kong Basic Law
4 Article 24(3) of the Hong Kong Basic Law
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We regularly help clients who wish to obtain residency in The Bahamas either by means of an Annual Residence Permit, a Permanent Residence Permit, and a Home Owner's Card.
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