Mixed results for permanent residency fight for migrant domestic workers

Foreign maids in Hong Kong fight for permanent residency

Unlike lawyers or bankers, domestic workers are barred from seeking permanent residency even after decades in the city. Recent legal challenges have produced mixed results.

By Benjamin Haas, Los Angeles Times, November 24, 2011, 3:04 p.m.

Reporting from Beijing—

For the last 20 years, Josephine Gutierrez, a native of the Philippines, toiled six days a week in the home of a Hong Kong family. On her day off, she attended church and was active in charity work. Her fourth child was born in Hong Kong.

But a Hong Kong court has ruled that she doesn't have the right to permanently settle in the city she has called home since 1991.

At the heart of the case is Hong Kong's immigration ordinance, which bars domestic workers and contract laborers from being eligible for permanent residence. Lawyers, bankers or teachers, among other professionals, are allowed to apply for residence after seven years.

The judge ruled that Gutierrez and her son had failed to demonstrate they had made Hong Kong their permanent home.

"There is a distinction between severing links with one's country of origin and the making of Hong Kong as one's permanent residence," Judge Johnson Lam wrote in his ruling this month. "Before one can make a place his or her only permanent residence, he or she must take some concrete steps turning such aspiration into a realistic proposition in terms of long-term livelihood at that place."

The vast majority of Hong Kong's 292,000 domestic workers are from Southeast Asia, mainly Indonesia and the Philippines. These two groups made up 2.9% of the population, according to the 2006 census. White foreigners from Western countries, in contrast, made up 0.5%.

Gutierrez can remain in Hong Kong as long as she continues working and has a visa sponsored by her employer. She applied for residency in the hope of retiring in the city.

"This shows how difficult it is to become a permanent resident in Hong Kong," said attorney Mark Daly, who represents Gutierrez and other maids fighting for residency, according to the South China Morning Post. Daly said Gutierrez and her son would appeal the case, the paper reported.

In September, Lam sided with another domestic worker, Evangeline Banao Vallejos, saying rules that prevented her from applying for permanent residency were unconstitutional. The government has said it will appeal.

Vallejos has lived in the city since 1986 and has been working for the same family for more than two decades. The judge ruled that she had planted enough roots to warrant granting the right of abode.

Political parties and organizations in the city worry that allowing domestic workers to gain permanent residency would put a burden on Hong Kong's social services and lead to an influx of additional immigrants, as maids sponsor family members for visas.

In a sign that a majority of Hong Kong citizens are opposed to the maids' cause, a political party that supported immigration rights for the maids incurred heavy losses in a district council election this month.

As a result, party leader Alan Leong told a TV station, the Civic Party won't support granting permanent residence status to half a million domestic workers and their families.

At the same time, experts believe Vallejos' case has the potential to give all domestic workers the chance to apply for permanent residency by striking down the ban on their doing so.

"The legal argument of the foreign domestic workers is quite strong and the court's judgment was thoroughly reasoned," said Kelley Loper, an assistant law professor at the University of Hong Kong. "I think the case has a good chance of holding up in the higher courts."

If Vallejos prevails at the Court of Final Appeal, the highest court in Hong Kong, the government or the court can still ask that the case be taken up by the Standing Committee of the National People's Congress in Beijing. That body has the ultimate jurisdiction for interpreting the Basic Law, the city's constitution.

And even if maids win the right to apply, immigration officials would still determine whether they meet the criteria for residency, Loper said.

Some officials in Hong Kong are already calling for the government to preempt a high court decision and have Beijing step in. The last time Beijing interpreted the Basic Law on an immigration issue was in 1999 when it reversed a court decision that would have allowed as many as 300,000 mainland Chinese to claim residency.

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