Hong Kong Law & Crime

Two Filipino domestic workers cannot stay in Hong Kong despite children having resident status, top court rules

Hong Kong’s top court has affirmed the immigration authority’s decision to turn away two Filipino domestic workers, despite their young children having residency status in the city.

The Court of Final Appeal was ruling on the cases of Milagros Tecson Comilang and Desiree Rante Luis, which were heard together. While working in Hong Kong as domestic workers, the two women gave birth to children who eventually became residents or permanent residents of the city.

The women launched a legal challenge against the Director of Immigration after they were denied permission to continue staying in Hong Kong.

Court of Final Appeal

Court of Final Appeal. File photo: inmediahk.net.

On Thursday, five judges at the Court of Final Appeal sided with the government in a unanimous decision, dismissing a line of argument based on human rights protections afforded by the Bill of Rights and the Basic Law.

The judges pointed to a key exemption in the Bill of Rights Ordinance: the law – which sets out the rights and freedoms enjoyed by Hongkongers – does not apply to the operation of immigration law when it comes to “persons not having the right to enter and remain in Hong Kong.”

Since neither Comilang nor Luis had the right of abode, the Director of Immigration had no legal duty to take into account the Bill of Rights Ordinance when turning them away, according to the judges.

The two women were “very disappointed” over the result, their lawyer said, adding that the decision “deviated from international human rights norms.”

“The court seems to acknowledge that the HKSAR did and still does subordinate all human rights to the need for strict immigration control, to the point of exclusion of any consideration,” Daly & Associates said in a statement.

The Court of Final Appeal

The Court of Final Appeal. File photo: Tom Grundy/HKFP.

However, the court made a note in their judgment that there were still other ways to challenge an immigration decision, and that the Director of Immigration did not enjoy “unfettered discretion.”

Children’s rights 

The women argued at the hearing that it was important for them to stay in Hong Kong since their children were still dependent on them for care and support.

The families would be “split” by the court judgment, their lawyer said.

“The judgment has failed to prioritise the very foundation of life – the relationship between a parent and child – and the sanctity and security that comes with knowing that this relationship is protected,” the law firm said.

“What’s more, the HKSAR has been lying to the public, and the United Nations, about protecting and respecting the best interests of the child.”

Comilang gave birth to her daughter, Zahrah Ahmed, in 2006. Luis has three children who were all born in Hong Kong in the 2000s: David John Rante, Carl Benz Rante and Mark Joelry Rante.

Immigration Tower wanchai

Immigration Tower. File photo: In-Media.

However, the court said that, as a matter of law, non-resident family members could not rely on their children as a basis to challenge immigration decisions.

Domestic workers in Hong Kong – who are predominantly women from Southeast Asia – enter the city on a special visa category that does not lead to permanent residency. Other immigrants could typically apply for permanent residency after being in the city for seven years.

In a landmark 2013 ruling, the Court of Final Appeal upheld the visa system for domestic workers as constitutional, despite the existence of differential treatment.

“The terms on which foreign domestic helpers are admitted to work and reside in Hong Kong are and have always been highly restrictive,” the judges said at the time.

“The foreign domestic helper is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement.”

Two Filipino domestic workers cannot stay in Hong Kong despite children having resident status, top court rules