H.K. court finds social security requirement unconstitutional

  • December 18,2013
  • Hong Kong's top court on Tuesday found a requirement that social security applicants must have resided in the territory for seven years before applying for welfare to be unconstitutional.

    "The government's policy, which came into effect on Jan. 1, 2004 requiring all recipients of comprehensive social security assistance to have been a Hong Kong resident for at least seven years, is not constitutional," Chief Justice Geoffrey Ma said in the 47-page ruling.

    The previous residence requirement was one year, which will now be reinstated.

    The Court of Final Appeal's five judges unanimously decided the seven-year requirement infringes Article 36 of the Basic Law, Hong Kong's mini-constitution in effect since the former British colony was returned to Chinese rule in 1997, which stipulates Hong Kong residents' right to social welfare.

    A daily quota of 150 people from mainland China were allowed to settle in Hong Kong under the "one-way permit" system, which falls in the jurisdiction of Chinese authorities and is out of Hong Kong's hands, since the handover and of all social welfare recipients new arrivals have accounted for 10-14 percent in the past decade.

    Mainland Chinese woman Kong Yunming came to live with her Hong Kong husband Chan Wing in 2005. He died the day after she arrived and she was left homeless but was not eligible to apply for social welfare.

    Both the Court of First Instance and Court of Appeal turned down her case.

    The ruling found that the increased financial expenses incurred by the government will not be significant and that the seven-year requirement contradicts government policies.

    "It runs counter to the avowed policies of respecting the rights of mainland children with the right of abode; of promoting family unity; of promoting immigration of mainland children to rejuvenate our ageing population when they are young and integrate more easily into our society," the ruling reads.

    Social assistance expenses were HK$18.5 billion ($2.4 billion) in the 2011 fiscal year, according to government figures.

    Ho Hei-wah, director of the Society for Community Organization that helps new immigrants settle in Hong Kong, said about 7,000 families will be affected and increased government spending on the new ruling will be about HK$400 million annually.

    But others were worried about the impact on social welfare resources derived from future dole applicants.

    "Now a precedent is set, those who have resided in Hong Kong less than seven years could apply and that would bring pressure on the CSSA (Comprehensive Social Security Assistance) scheme," legislator and former security secretary Regina Ip said.

    The Social Welfare Department said it is seeking legal advice on the ruling.

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