Changing the rules
June 14, 2004
There was a story in the paper on Sunday about the Filipino domestic helper who is trying to apply for right of abode in Hong Kong. I would have thought that she is unlikely to succeed (but then I know even less about the law than Conrad), because although she has been here for more seven years the rules specifically exclude domestic helpers. However, the fact that the case was accepted by the court suggests that it has some merit. The case was reported here.
The odd thing (to me) is that the Post's story is that the Labour Department are now forcing domestic helpers to take their 7 days holiday at the end of their contracts rather than staying in Hong Kong. The point being, apparently, that if they are here for two years, then leave and come back before starting a new contract, this will not count as being continuously resident in Hong Kong (hence it would be impossible to claim Right of Abode).
I can see two problems with this. Firstly, if the courts decide that domestic helpers are entitled to Right of Abode after seven years, it would be illogical to disqualify them for being away for 7 days between contracts. Secondly, as I understand the rules for everyone else, even fairly lengthy absences from Hong Kong do not disqualify you from being treated as ordinarily resident.
A spokesman for the human rights group that raised this issue is quoted as saying that there is a disparity between the way a British citizen working in bank and a foreign domestic helper (FDH) would be treated. Well, in truth, there are so many disparities that it's hard to know where to start, but if you asked Shaky (for example) to take a compulsory 7 day vacation in the UK every two years I don't think he would complain too much, so surely this is one of the more trivial differences. I also feel bound to point out that there is no difference between a Briton working in a bank and a Filipino working as an accountant or computer programmer (or any job apart from FDH) as far as qualifying for Right of Abode is concerned.
The interesting thing here is that the rules and regulations regarding foreign domestic helpers can be viewed in a number of different ways (putting aside Right of Abode for the moment). One line of argument is that the government wants to discourage Hong Kong residents from hiring overseas helpers, and so there is a minimum wage that is higher than the market rate. Alternatively, you can argue that the rules are in place to protect overseas helpers, and the insistence on taking a holiday after 2 years is also for their benefit.
On Right of Abode, it's interesting to consider what might happen if the rules were changed. Firstly, it is possible that the Labour Department might refuse to allow contracts to be extended beyond seven years so as to prevent the situation arising. Secondly, I assume that once a helper had been granted Right of Abode they would no longer be subject to the current FDH rules, and could negotiate freely with the employer, which logically means that they could accept a lower salary. Or, of course, they could take up other employment in Hong Kong, which is presumably what the government is trying to prevent.
The number of helpers who spend more than seven years in Hong Kong must be quite small (The Standard's story says 15,000). There are several reasons for this. Employers are often reluctant to extend contracts beyond 5 years because they would then have to pay a long service gratuity, and once a helper's contract has expired they can only stay in Hong Kong for a short time.
It seems to me that one of the biggest problems here is the distinctly odd rule that after living (legally) in Hong Kong for seven years you will normally be granted Right of Abode and can become a Permanent Resident.
However, to be fair, immigration laws all over the world are often strange - the difficulty facing all governments is how to resolve the conflict between the economic benefit of migration and the concerns many people have about unemployment. The result is usually a set of arbitrary rules, which can probably be exploited by the unscrupulous or the desparate (often aided by immigration consultants).
Under the Hong Kong system there is no guarantee that a working visa will be renewed when it expires (but I believe that it in practice you simply have to apply with the correct paperwork) and if the employment is terminated then the employee has to leave Hong Kong.
In this case, it seems to me that Singapore has a more logical system than Hong Kong. Why should someone have to wait seven years to become a permanent resident? If they have appropriate skills or qualifications, why not offer it immediately rather than just a one or two year working visa? At the other extreme, what is the logic of offering permanent residence even after seven years if the person doesn't have any special skills?
A while back, there was some fuss about the questions that some foreigners were being asked when they applied for Right of Abode. As I recall, they wanted to know if the applicant had a local girlfriend, spoke Cantonese, or owned any property here. He regarded the first question as impertinent and had to give negative answers to the other two. Given the concept of permanent residence, it doesn't seem unreasonable to consider whether the applicant intends to make Hong Kong his permanent home. However, you have to ask whether this is logical. If someone doesn't actually plan to stay here 'permanently' (whatever that means), the main consideration ought to be whether Hong Kong needs the skills or experience that they have, which brings us back to the Singapore system of offering permanent residence to people when they arrive. After all, if they actually plan to stay for 5 or 6 years you have avoided the need to keep issuing visas (with all the accompanying form-filling and bureaucracy), and you might just persuade them to stay longer - assuming that is what you want.
How can anyone settle in Hong Kong if there is the threat in the first seven years of being forced to leave at short notice if you are sacked or made redundant? I know that most employers try to be flexible and give employees time to find a new job, but it still makes things difficult.
Not as difficult as being a domestic helper, of course. If the employer terminates the contract the helper will almost invariably be expected to leave immediately, so they become homeless and only have a short time to find a new position before being required to leave Hong Kong. I'm not sure about permanent residence, but I do think that there plenty of other ways in which domestic helpers deserve a better deal.
u misunderstand the law- it is still continuous stay as long as u are in hk 6mths of each year for 7 years.
Posted by: melody | November 19, 2007 at 10:45 PM