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The High Court has commenced a three-day hearing of the Hong Kong government's appeal in which the government seeks to quash a lower court ruling, granting a foreign domestic helper (FDH) right of abode in the SAR.
Government Counsel David Pannick presented submissions on Tuesday, arguing that misunderstandings by Justice Johnson Lam Man-hon of the Court of First Instance, resulted in a judgment that incorrectly deemed provisions of the Immigration Ordinance unconstitutional and inconsistent with the Basic Law.
Pannick offered three grounds for the final appeal. First, he submitted, the concept of "ordinary resident" should be defined and delineated under an overall constitutional context. This context should be applied under the powers mandated to the authority to apply provisions to identify non ordinary residents and to execute immigration control. Second, Pannick argued, Article 24 of the Basic Law, which offers an explanation of permanent residency, recognizes the circumstances of foreign domestic helpers (FDHs) as "out of ordinary". Finally, he told the court any perceived ambiguities concerning "ordinary resident" and the standing of foreign domestic helpers, are framed unequivocally in the timeline, preparatory to the signing of the Sino-British Joint Declaration.
Pannick said the immigration provision which excludes FDHs from entitlement to permanent residency is not inconsistent with the Basic Law, because Article 154 of the mini constitution says the SAR government "may apply immigration controls on entry into, and stay in ... from foreign states and regions". He cited Lam's verdict and said the Judge principally agreed to that point.
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Furthermore, Article 24 in itself is unclear, ambiguous and must be interpreted in context, Pannick said.
The government counsel also addressed a previous submission by the appellant's counsel Gladys Li Chi-hei, SC, that the determination of the meaning of "ordinary resident" if left up to the government, undermines and derogates the rule of law. Pannick countered, saying that Li failed to recognize the margin of discretion permitted by the authority to defining the meaning. He also said it is a common characteristic of constitutions that the government retains that power.
To further support his point that the FDHs are not "ordinary residents", the government counsel pinpointed the "qualitative nature" of the category. Pannick said it is not that the category is distinctive in nationality, color or sex, but the conditions of FDHs' staying in Hong Kong are "on a very narrow basis" compared to other non-permanent residents.
He cited the fact that foreign domestic helpers have no choice or control over their place of residence. Those limited conditions to an extraordinary extent, Pannick said, constitute the distinctive, qualitative nature of the phrase, "out of ordinary".
Pannick also reminded of the importance of the legislative intent of the Basic Law, that is, the Joint Declaration, a point that has been dismissed by Lam.
Pannick conceded that recorded documents of any legislative intent - and the chronological formation of it - before 1997 served as "an organ of liaison between the PRC and the British governments, not as a supervising role to the SAR."