Vallejos and Domingo v Commissioner of Registration was a court case against the government of Hong Kong by two foreign domestic helpers (FDHs) seeking permanent residence and the right of abode in Hong Kong. Because of its subject matter it was commonly referred to in the media as the FDHs' right of abode case (). Evangeline Vallejos and Daniel Domingo were two of five applicants who in various groups filed three right of abode lawsuits in 2010; the ruling in Vallejos' case was expected to be a precedent for the other two.

On 30 September 2011, Justice Johnson Lam of the Court of First Instance of the High Court (CFI) ruled in Vallejos' case that existing legislation restricting FDHs from qualifying for permanent residence contravened the Hong Kong Basic Law. Lam also found that Vallejos and Domingo, but not the three other applicants, had fulfilled the condition of taking Hong Kong as their only permanent home and being ordinarily resident in Hong Kong for seven years. The Court of Appeal of the High Court overturned the CFI's decision on Vallejos' case on 28 March 2012. Vallejos and Domingo then jointly appealed to the Court of Final Appeal (CFA), which heard their case on 26–28 February 2013; the CFA rejected their appeal on 25 March 2013.

Background

The applicant The first applicant in the CFA case, Evangeline Banao Vallejos, is a native of the Philippines, where she was previously a businesswoman. She came to Hong Kong in 1986 as an FDH, while the territory was still a British colony. During her first year in Hong Kong, she switched employers, but afterwards continued to work for the family of Barry Ong for more than two decades. She performed volunteer work and became active in a church. She approached the Immigration Department for verification of eligibility for permanent residence in April 2008. In November that year, the Immigration Department informed her that her application was not successful; she was not considered to be "ordinarily resident" in Hong Kong by reason of Immigration Ordinance Article 2(4)(a)(vi). The following month, she approached the Registration of Persons Office to apply for a Hong Kong Permanent Identity Card, for which she was also rejected. She appealed to the Registration of Persons Tribunal, which in June 2009 ruled against her. At that point, Vallejos applied to the Legal Aid Department for help; local law firm Barnes and Daly, as well as barrister Gladys Li, agreed to assist Vallejos in applying for judicial review to rule on whether the relevant provision of the Immigration Ordinance complied with the Basic Law. The case came to mainstream media attention in December 2010.

Vallejos turned out to be one of five Philippine nationals who would file applications for judicial review. The others were applying jointly in groups of two. Daniel Domingo (the second applicant in the CFA case) and his wife Irene Raboy Domingo had been working in Hong Kong since the 1980s as FDHs, met, married, and bore three children there. They had applied for verification in April 2006, and had been granted unconditional stay but not permanent residence in November 2007. Josephine Gutierrez came to Hong Kong in 1991, where her son Joseph James Gutierrez was born in 1996; both applied for verification in December 2006. Vallejos' court date was set for 22 August, while the others were scheduled for October. Vallejos stated that she hoped to retire in Hong Kong.

Immigration laws The year after Vallejos arrived, the law of Hong Kong was amended to introduce the concept of "permanent residence". Permanent residence was a new status which would allow persons not born in the territory to gain the right of abode there. It was to be conditional on prior "ordinary residence" in Hong Kong, so that it would comply with the 1984 Sino-British Joint Declaration and the Hong Kong Basic Law Article 24(4) which would take effect in the future. Foreigners who "ordinarily resided" in the territory for seven years would be allowed to apply for permanent residence; if successful, they would gain various privileges including the franchise, freedom to stay in Hong Kong and switch employers without a work visa, and eligibility for public housing.

"Ordinarily resident", a term whose definition is found primarily in case law, had been qualified by statute as early as 1971 for purposes of establishing qualifications for other residence statuses. In 1982, the Immigration Ordinance was amended to state in Article 2(4)(a) that people who had landed unlawfully, had breached their limit of stay, or were refugees, would not be treated as "ordinarily resident". In 1989, Article 2(4)(a) was again amended to further exclude people in immigration detention from the definition of "ordinarily resident". On 1 July 1997, immediately after the transfer of sovereignty over Hong Kong, additional amendments to the Immigration Ordinance came into effect. Among other changes, these excluded four further classes of persons from the definition of "ordinarily resident": foreign contract workers under importation of labour schemes, foreign domestic helpers, consular staff in Hong Kong, and members of the People's Liberation Army Hong Kong Garrison. Another amendment in 2002 excluded holders of "prescribed Central People's Government travel document[s]". Thus, in total nine classes of people physically present in Hong Kong were defined by statute not to be "ordinarily resident".

Court of First Instance

Hearing and ruling The hearing on Vallejos' case began on 22 August 2011, and stretched out until the 24th. David Pannick represented the respondent, the Commissioner of Registration. During the hearing, the courtroom was packed to overflowing with lawyers, journalists, and other members of the public, who took up not just the seats in the public gallery, but also those for defendants and jury members (the latter being unoccupied as the case at hand was not a jury trial but a judicial review). Another hundred people watched the proceedings on a large-screen television in the lobby, while protestors both supporting and opposing Vallejos' case faced off outside the building without incident.

Justice Johnson Lam Man-hon of the CFI had been expected to rule on the case on 29 September 2011. However, the Hong Kong Observatory raised tropical cyclone warning signal No. 8 due to the approach of Typhoon Nesat early that morning, meaning that government offices closed for the day. The next morning, the weather had returned to normal, and Lam announced his ruling that the relevant provision of the Immigration Ordinance was inconsistent with the Basic Law. Vallejos herself did not attend court that day, as she was at work.

Throughout the rest of October and November, Lam heard arguments and delivered judgments in two further FDH residence cases, namely Irene R. Domingo and Daniel L. Domingo v Commissioner of Registration (HCAL 127 and 128/2010) and Josephine B. Gutierrez and Joseph James Gutierrez v Commissioner of Registration (HCAL 136 and 137/2010). Among those applicants, only Daniel Domingo was found to have satisfied the "ordinary residence" requirement entitling him to apply for permanent residence; Lam found that Domingo's wife Irene's period of ordinary residence was interrupted by a period of overstay in which she remained in Hong Kong without the authority of the Director of Immigration. He separately ruled that Josephine Gutierrez had not taken positive steps to establish Hong Kong as her only place of permanent residence, meaning that she and her son Joseph James were not entitled to apply for permanent residence either.

Governmental reactions The day of the ruling, Hong Kong Secretary for Security Ambrose Lee announced that the government would appeal Lam's ruling, and separately would apply to stay the judgment in a hearing in October. He also stated that the Immigration Department would suspend right of abode applications by FDHs, and that such action did not amount to contempt of court as commentators had suggested.

Government officials in Indonesia and the Philippines, the two major countries of origin of FDHs in Hong Kong, reacted favourably to the ruling. Philippine President Benigno Aquino III welcomed the news, though stating that he was not too familiar with Hong Kong's laws and would look into the matter. Philippine vice-president Jejomar Binay called it "a step forward in recognizing the rights of migrants". Philippine Department of Foreign Affairs spokesman Raul Hernandez was more circumspect, stating in general terms that the government welcomed developments which improved the situation of overseas Filipino workers, but that he would refrain from further comment as other similar cases were still pending. Gusti Made Arka, director-general for workers abroad with the Indonesian Ministry of Labour, similarly stated that "We have always considered Hong Kong one of the best places for our workers ... We hope that this decision is seen as a benchmark and that other countries do the same".

NGO and public reactions

Justice Lam, knowing that whatever decision he made would be controversial, took time to emphasise during the court proceedings that his job was to rule on the content of the law, not to take into account political or social factors, which would be the job of the legislature. Migrants from the Philippines and Indonesia called on their respective governments to discuss the situation with the Hong Kong government and find a way to allay the Hong Kong public's concerns over the ruling.

Application for stay of judgment On 4 October, the government filed an application for a stay of execution of Lam's earlier judgment. David Pannick, again representing the Commissioner, had argued that the "status quo should be maintained" until appeals had been exhausted. However, on 26 October, Johnson Lam ruled against the government's application for stay. He noted that his earlier ruling applied only to the case of Vallejos herself. He stated that other FDHs would be free to file applications. However, he stated that it would be entirely permissible for the Immigration Department to delay processing of such applications until after appeals, and that such action would not constitute contempt of court as the government had feared. He further stated that if the Immigration Department chose not to entertain other applications by FDHs, it was up to those applicants themselves to take their cases to court. He also pointed out that "[s]hort of a temporary validity order, the court cannot pre-empt any person from relying on the legal principles set out in a judgment of the court"; the government did not seek such an order, and Lam doubted that the court had jurisdiction to give it. Thus, as he stated, the relief sought by the government would not shield it from suits by other right of abode applicants. Vallejos' solicitor Mark Daly stated that his client's residence application was "100 sure" as a result. The Hong Kong Human Rights Monitor was quoted as welcoming the ruling.

Court of Appeal

Hearing