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| The High Court |
Drafters of Hong Kong’s post-1997 constitution did not intend to relax the government’s tight immigration controls in favor of family rights, a High Court has said.
Chief Judge of the High Court Andrew Cheung said this, as he and two other judges quashed an appeal by two former Filipino domestic helpers for a judicial review of Immigration’s refusal to extend their visa so they could stay with their children residing in Hong Kong.
The two women, Milagros T. Comilang and Desiree R. Luis, through their counsel Gladys Li SC, challenged the Immigration director’s decision, claiming they have the right to remain here under the family rights provisions of the Basic Law.
Comilang had filed the appeal to be with her son Zahrah Noor Ahmed. Desiree R. Luis did the same for his sons David John, Carl Benz and Mark Joelry, all minors. Their cases were heard jointly along with African appellant Salifou Dembele’s appeal for permanent residency to be with his Chinese wife and their three children.
The decision, penned by Vice President Justice of Appeal Jeremy Poon and concurred in by Cheung and Vice President Justice of Appeal Johnson Lam, was handed down on Mar 26 after the three judges heard the cases simultaneously on July 10-12 last year.
Cheung said at the heart of the cases were the constitutional family rights of the foreign applicants and the corresponding family rights of family members who are residents.
He said these rights were argued based on Article 37 of the Basic Law, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
He said, ultimately, one must look at the true intent of the Basic Law drafters towards family rights as a whole in deciding whether the applicants’ arguments are correct or not.
“There is simply nothing to indicate to this court that when drafting the Basic Law under the overarching theme of ‘one country, two systems’, the drafters intended to relax the Government’s tight immigration controls in favor of family rights,” the judge said.
He said Li relied on Article 37 of the Basic Law, which guarantees freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.
Citing a precedent case, Cheung said the right guaranteed under the Basic Law does not extend to a person in Hong Kong who is not a resident as far as it relates to immigration legislation governing his entry into, stay in or departure from Hong Kong “unless the right in question is a nonderogable and absolute right”.
Lam agreed, saying “the core issue …is the impact of the right to family life on the exercise of the power of the Director of Immigration in respect of immigration control.”
Comilang, a domestic helper terminated in July 2005, married Ahmed, a Pakistani permanent resident of Hong Kong three months later and gave birth to Zahrah on Feb 2, 2006. The child became a permanent resident by birth. The Filipina’s visa expired on Oct 10, 2005 so she applied for a change of status as a dependant of Ahmed.
On May 8, 2007, Ahmed, who was found to have a wife in Pakistan, pulled out his support for her application and Comilang left him and Zahrah for good on June 4, 2007.
She had made several but futile applications for her extension of stay since September 2007 to take care of her child. She began judicial review proceedings in April 2011, but Lam dismissed her application and rejected all her grounds of challenge.
She applied for judicial review in April 2014. In June 2014, the judge granted her ex parte leave to apply for judicial review.
The other first appellant, Desiree Luis, came to Hong Kong as a helper in 1991. She married Mr Luis, a Filipino helper here, in 1997. She gave birth in the Philippines to their eldest son, who had been allowed to stay in Hong Kong as a visitor on five separate occasions. He last left Hong Kong in January 2014.
Luis gave birth to two more sons while working in Hong Kong, David (the second appellant) in June 2002 and Carl (the third) in August 2004. In April 2006, her work contract expired. She was granted extension to stay until 3 June 2006.
Luis visited Hong Kong as a visitor on numerous occasions and had been granted extension to stay in Hong Kong. In December 2009, while visiting Hong Kong, she gave birth to her youngest son, Mark (the fourth appellant).
After verification by the director, David was confirmed to have acquired Hong Kong permanent residency since 2010. His two younger brothers remain in Hong Kong as dependants of their father.
On Jan 26, 2012, the director refused Luis’s application for extension of stay to take care of her three sons in Hong Kong. She then overstayed, but this was deemed “tolerated” only by the Director of Immigration.
Luis applied for permission to remain in Hong Kong on May 6, 2013 to take care of her sons. It was refused by the director on Jul 26, 2013 on grounds similar to those applied to Comilang. In May 2014, Luis applied for leave for judicial review and she was granted ex parte leave in July 2014.
