Read the full judgment text of FACV 19/2012, FACV 20/2012 on BabelCite. This Court of Final Appeal judgment was delivered on 25 March 2013 before Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Hartmann NPJ and Sir Anthony Mason NPJ.
Constitutional law – Basic Law – Article 24(2)(4) – permanent resident status – ordinary residence – foreign domestic helpers (FDHs) – Immigration Ordinance (Cap 115) section 2(4)(a)(vi) – whether FDHs are entitled to be treated as ordinarily resident for the purpose of acquiring Hong Kong permanent resident status – whether restrictive FDH conditions of stay render their residence qualitatively different from ordinary residence – interpretation of constitutional provisions – modern purposive approach – whether 'natural and ordinary meaning' of 'ordinarily resident' from Ex parte Shah is decisive. The appellants, Philippine nationals who had worked in Hong Kong as FDHs for many years, challenged the constitutional validity of section 2(4)(a)(vi) of the Immigration Ordinance, which excludes persons employed as FDHs who are from outside Hong Kong from being treated as ordinarily resident for the continuous seven-year period required by Article 24(2)(4) of the Basic Law. Held, dismissing the appeals: (1) The proper approach to interpreting 'ordinarily resided' in Article 24(2)(4) gives primacy to context and purpose; the 'natural and ordinary meaning' formulation in R v Barnet London Borough Council ex parte Shah is only a starting-point and not decisive; the expression 'ordinary residence' is open-textured and inherently flexible. (2) Article 24(2)(4) implicitly recognises that continuous seven-year ordinary residence can only be achieved subject to continuing immigration control, and the Director may impose conditions of stay that materially affect the quality of residence. (3) The highly restrictive conditions applicable to FDHs as a class – tied to a specific employer, required to reside in the employer's home, required to return home between contracts, prohibited from bringing dependents, admitted only for the purpose of specific employment and not settlement – render their residence qualitatively so far-removed from what would traditionally be recognised as ordinary residence as to justify their exclusion as a class. (4) Section 2(4)(a)(vi) is therefore consistent with Article 24(2)(4) and constitutionally valid. (5) The necessity condition under Article 158(3) of the Basic Law is not satisfied in respect of the Commissioner's proposed questions on the meaning and effect of an 'interpretation' under Article 158(1); no reference to the Standing Committee of the National People's Congress is required. Appeals dismissed; costs submissions to be lodged within 14 days with replies within a further 14 days.
Legal issues: Constitutionality of section 2(4)(a)(vi) of the Immigration Ordinance excluding FDHs from ordinary residence · Proper approach to interpreting 'ordinarily resided' in Article 24(2)(4) · Whether the Court should refer questions to the Standing Committee of the NPC under Article 158(3)
Outcome: Appeals dismissed. Section 2(4)(a)(vi) of the Immigration Ordinance held to be constitutional and consistent with Article 24(2)(4) of the Basic Law. The request for a reference to the Standing Committee of the NPC under Article 158(3) was rejected.
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