Hong Kong Court Denies Foreign Domestic Helpers Right to Permanent Residency

HONG KONG — Hong Kong’s highest court ruled unanimously Monday that a woman from the Philippines who had lived and worked here for nearly 27 years as a domestic helper was not entitled to permanent residency, ending an acrimonious legal fight over the immigration rights of migrant workers.

Public opinion surveys had shown that a large majority of Hong Kong citizens opposed granting permanent residency to the city’s domestic helpers, which would grant them the right to live in the city for the rest of their lives and use the nearly free public health care system and other social services. Many residents and the local government feared that granting permanent residency would have resulted in increased social spending.

But activists for domestic helpers, along with Mark Daly, the lawyer who championed their cause in the legal battle, contended that denying permanent residency would cement lasting divisions in Hong Kong based on gender and race. Virtually all of the estimated 300,000 foreign domestic helpers in this city of seven million are women, and they are not mainland Chinese, who qualify for separate rules for permanent residency and passports under Hong Kong’s Basic Law, the city’s miniconstitution.

The decision Monday by the Court of Final Appeal, Mr. Daly said, “is a regrettable decision; it basically entrenches their being second-class citizens.”

Lai Tung-kwok, Hong Kong’s secretary for security, welcomed the court’s decision, saying at a news conference that the government would rely on it in handling a recent surge in applications from domestic helpers for permanent residency. There were 1,067 such applications filed between September 2011, when the legal effort on behalf of foreign domestic helpers began attracting attention, and the end of last week, according to the city’s Immigration Department.

The Hong Kong decision coincides with debates in the European Union and the United States over what legal rights should be extended to illegal immigrants, as opposed to the contract workers in the dispute here.

The landmark case highlighted questions of judicial independence, with Hong Kong’s government having put heavy pressure on the court to reject permanent residency for foreign domestic helpers.

In an unusual and highly contentious move, the local government asked the court in advance to refer a central issue in the case to the Standing Committee of the National People’s Congress in Beijing, which could be expected to side with the Hong Kong government. In issuing its decision in the government’s favor, the court said that its ruling meant there was no need to seek a binding legal interpretation from Beijing.

Yet the ruling also made it clear that there could be other circumstances in the future in which the court would seek such an interpretation.

With the decision, the judges “on the one hand maintain the authority of the Court of Final Appeal, and at the same time try not to be too aggressive to the National People’s Congress," James Sung, a political science professor at the City University of Hong Kong, said in an interview outside the courthouse, a brick mansion downtown.

The decision had been watched around Asia as a sign of whether Hong Kong, a vast majority of whose population is ethnic Chinese, would embrace a more multiethnic future. Rimsky Yuen, Hong Kong’s secretary for justice, said that the territory would "certainly endeavor to maintain Hong Kong as a cosmopolitan society.”

The ruling also comes as China’s new president, Xi Jinping, has spoken in a series of speeches of a "China dream" that blends nationalism and socialism in calling for a muscular military combined with an economic rejuvenation of China under Communist Party guidance.

There was no immediate reaction to the ruling from the Hong Kong consulates of the Philippines and Indonesia, the two countries that provide the largest number of domestic helpers to Hong Kong. Both countries have also been warily watching China’s increasingly assertive territorial claims in the South China Sea and the East China Sea, which particularly affect Brunei, Japan, Malaysia, the Philippines and Vietnam.

The Basic Law provides that people who are ‘‘ordinarily resident’’ in the city for at least seven years are entitled to permanent residency. But Hong Kong’s immigration ordinance says that no matter how many years people live in the city as contract workers, they do not count as ‘‘ordinarily resident’’ during those years.

Mr. Daly and his clients, Evangeline B. Vallejos and Daniel L. Domingo, challenged the immigration ordinance as an unconstitutional violation of the Basic Law. A lower court had ruled in their favor, while an appellate court had ruled against them.

The Court of Final Appeal ruled against both of them. But because of rare and complex circumstances in Mr. Domingo’s case, the separate case on behalf of Ms. Vallejos, who has worked in Hong Kong since 1986 and will turn 61 this year, has been at the center of the broader controversy.

An important issue in the litigation lay in whether the "natural and ordinary meaning" of the language of the Basic Law should be paramount, most notably in interpreting the term "ordinarily resident," or whether a broader statutory context should be considered. The court ruled that the broader context should be used.

In its lengthy decision, the court noted that foreign domestic helpers entered Hong Kong under visas that required them to return to their country of origin every two years before starting another two-year contract. The court also pointed out that the helpers were ‘‘told from the outset that admission is not for the purposes of settlement, and that dependents cannot be brought to reside in Hong Kong.”

Politicians opposed to granting permanent residency to domestic helpers had contended that it could result in the city’s being flooded by their dependents, who are not currently allowed to come to Hong Kong. Christopher Chung, a member of Hong Kong’s legislature from the pro-Beijing Democratic Alliance for the Betterment and Progress of Hong Kong, welcomed the court’s decision, saying that "when these foreigners come to Hong Kong, their one and only aim is to be a domestic helper.”

In deciding not to seek a legal interpretation on citizenship issues from the Standing Committee in Beijing, the Court of Final Appeal left unresolved another acrimonious issue in Hong Kong: whether the children of mainland Chinese should continue to be entitled to full Hong Kong citizenship if born in the territory. Hong Kong’s strong educational system and excellent medical care, along with the visa-free access that Hong Kong passports provide to 146 countries and territories, led to a surge in mainland women who came to the city to give birth.

The local government has banned mainland mothers without a Hong Kong husband from scheduling births at Hong Kong hospitals since the start of January, and it said late Monday that it would continue to review legal measures that might make citizenship harder to obtain for the Hong Kong-born offspring of mainland couples. The Hong Kong Bar Association issued a statement urging the local government to refrain from involving the National People’s Congress in the issue, cautioning that this would undermine the rule of law here