High Court rejects Filipino mothers’ bid to stay with kids
The judge said drafters of the Basic Law did not intend to relax the government’s tight immigration controls in favor of family rights
Two Filipino women have lost their bids to remain in Hong Kong with their children. Hong Kong’s High Court rejected an appeal by the two former domestic workers for a judicial review of the Immigration director’s refusal to extend their stay in Hong Kong to take care of their children.
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 in the city under the family rights provisions of the Basic Law, sunwebhk.com reported.
Comilang, a domestic worker terminated from her job in July 2005, then married a permanent resident of Hong Kong from Pakistan named as Ahmed and gave birth to daughter Zahrah in 2006. The child became a permanent resident by birth.
Comilang’s visa expired in October 2005 so she applied for a change of status as a dependent of Ahmed. In 2007, Ahmed withdrew his support for Comilang’s application after it was discovered he had a wife in Pakistan.
Since then Comilang made several applications to extend her stay to take care of her child and applied for a judicial review in April 2014. The judge granted her ex parte leave to apply for a judicial review two months later.
In the other case, Desiree Luis came to Hong Kong as a domestic worker in 1991 and married a Filipino worker named as Mr Luis in 1997. She gave birth to their eldest son in the Philippines and three more sons were born in Hong Kong since 2002.
Luis’ work contract expired in April 2006. Since then, she visited Hong Kong on numerous occasions. The Immigration Department’s director verified and confirmed that her second son had acquired Hong Kong permanent residency since 2010 and his two younger brothers remained in Hong Kong as dependents of their father.
In 2012, Luis’ application for an extension of stay to take care of her three sons was rejected by the director and she tried again but failed. Luis applied for leave for judicial review and was granted ex parte leave in July 2014.
The cases were heard jointly by the chief Judge of the High Court Andrew Cheung, Vice-President Justice of Appeal Jeremy Poon and Vice-President Justice of Appeal Johnson Lam. The panel handed down its decision on March 26.
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, adding that 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.
Cheung explained, ultimately, that one must look at the true intent of the Basic Law drafters towards family rights as a whole in deciding whether the applicants’ arguments were correct.
Drafters of the Basic Law – Hong Kong’s post-1997 constitution – did not intend to relax the government’s tight immigration controls in favor of family rights, the judge said.
Cheung cited a precedent case and said the rights guaranteed under the Basic Law do 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 non-derogable and absolute right.”
Judge Johnson 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.”