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A 66-year-old Hong Kong resident, denied Comprehensive Social Security Assistance (CSSA) because he had been absent from Hong Kong for longer than 56 days, has won his case against the CSSA.
The High Court has struck down the program's one-year continuous residency requirement for CSSA recipients. In his ruling Justice Andrew Cheung said the requirement not only constituted differential treatment for people who wished to travel, but also was an infringement on their freedom of movement.
Justice Cheung wrote that the one-year residency requirement was "unconstitutional and unlawful discrimination against those permanent residents who have been absent from Hong Kong for a total period of more than 56 days in the year immediately prior to their applications for CSSA." The judge ruled that the CSSA requirement contravened the equality of all permanent residents that is enshrined in the Basic Law.
Entitlement to CSSA has always been subject to a residency requirement. Prior to 1959 the residency requirement was 10 years. In that year it was reduced to 5 years. There came another reduction to one year in 1970; then it was raised to seven years following a 2004 review. The 2004 review also resulted in the imposition of the one-year continuous residency requirement. The objective of the requirement was that of "discouraging people who have lived outside Hong Kong for a long time from relying on CSSA as soon as they returned to Hong Kong."
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In his judgment, Cheung said the 57-day grace period permitted under the existing statutes was too short. He noted in his ruling that only 5,149 applicants of a total of 110,223 failed to meet the one-year continuous residency requirement. Among those, 3,414 successfully applied for waivers between June 2007 and June 2009.
"Those permanent residents, who turned to CSSA as soon as they returned to Hong Kong after living outside Hong Kong for a long time, comprised only a very minor proportion of the total," he said.
While the requirement did not prevent permanent residents from leaving Hong Kong, Cheung reasoned it imposed sanctions on residents traveling and staying outside Hong Kong for a total period exceeding 56 days a year immediately before applying for CSSA, he wrote.
"In my view, that plainly impedes upon the constitutional right to travel," he wrote.
Ordering the requirement be thrown out, Cheung also ordered quashed two rulings by the Social Security Appeal Board and the Director of Social Welfare that rejected the CCSA applications of the elderly man who launched the judicial review.
The case was brought by 66-year-old Hong Kong permanent resident George Yao Man-fai, who had been employed on the mainland as a textiles manufacturing company clerk beginning in 2006.