Pinay DH loses plea for residency rights in HK

HONG KONG - A Filipina who was roughly 10 months short of being eligible to apply for a permanent resident status in Hong Kong has unsuccessfully argued before the Court of Appeal that her stay as a foreign domestic helper can be taken into account when calculating her period of continuous residence in the territory. In a decision handed down on Aug. 3, the three-panel appellate judges ruled against Maura Juliet A. Raquiza when it declared that, "A period when an applicant is a foreign domestic helper cannot be taken into account as being a period of ordinary residence whether that occurred before or after the coming into force of the subsection on 1 July 1997." The reference is to subsection 2(4)(a)(vi) of the Immigration Ordinance which provides that a domestic helper who is not from Hong Kong is not "ordinarily resident." In the course of arguing Raquiza's appeal, Philip Dykes, S.C., also sought to have the said section of the Ordinance declared invalid as it contradicts article 24(4) of the Basic Law which provides that permanent residents of Hong Kong include "persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region." The said article does not distinguish between foreign domestic helpers and other persons "not of Chinese nationality" who have entered Hong Kong legally. But in rejecting this move, Judge Anthony Rogers, who spoke for the appellate court, noted that the issue was not raised at any stage in the earlier proceedings. He said that "the step of striking down legislation as being unconstitutional is a grave step which should only be taken on mature consideration with the court being given all the assistance possible." Raquiza first arrived in HK on Aug 26, 1988 to work as a domestic helper. She continued to stay here until Feb. 27, 1992 when she returned to the Philippines after her contract was prematurely terminated. On June 5, 1992, she returned to HK to again work as a domestic helper. On Oct 15, 1996 she married Cheng Chun Shun and on April 14, 1997, she was granted a dependant's visa which was extended until March 15, 2003. By this time, her marriage was already shaky and on June 9, 2003, when the couple appeared for an interview at the immigration department, Raquiza announced that she was filing for divorce. On Nov. 24, 2004, the couple's divorce became final. On May 4 the next year, the Immigration Director rejected her application for an extension of her stay. Raquiza sued the Director of Immigration, saying his refusal to extend her stay in Hong Kong infringed on her right under the Basic Law, which only requires a continuous stay of seven years for a non-Chinese resident. She also said that subsection 2(4)(a)(vi) of the Immigration Ordinance which barred foreign domestic helpers from enjoying permanent residency status did not have retroactive effect. Since she had already been in HK for nine years before the said Ordinance came into effect, she said it did not apply to her. But the appellate court judges also rejected this argument, saying Raquiza could still not have become a permanent resident before the said Ordinance came into effect in 1997. They cited the previous Ordinance which categorically stated that "A non-Chinese national could not acquire permanent residence even though he had continuously ordinarily resided in Hong Kong for seven years or more." The court also ruled that even if her stay as domestic helper is taken into account, Raquiza was still not in Hong Kong for a continuous period because she had been away from HK from February to June, 1992. "Quite apart from the fact that the applicant was not in Hong Kong she had no right or permission to be in Hong Kong at that stage. Hence it would have been impossible for her to have been ordinarily resident," ruled Judge Rogers. Raquiza's case is seen as having far-reaching implications, as it could affect pending applications for permanent residency by several Filipino domestic helpers. Among them are Daniel and Irene Domingo, whose two children made HK legal history last year when they became the first children of foreign domestic helpers to be granted right of abode. The Domingo couple's own application was rejected at the first instance, but they have since appealed their case, and are now awaiting the outcome. "Non-eligible daw kami dahil nga domestic helper kami. Pero, nandito ang mga anak namin. Minor pa sila. Paano kung bigla kaming mawalan ng trabaho? Iiwan ba namin sila dito? Sino ang mag-aalaga sa kanila? What's the use of being family if we are not staying together?" were just few of the questions asked by Daniel. Daniel has been working and living in Hong Kong for the past 22 years while his wife has been here since 1982. - The Sun, HK