Year: 2013 (Date of Decision: 17 December, 2013)
Forum, Country: Court of Final Appeal; Hong Kong
Standards, Rights: Proportionality; Non-discrimination and equal protection of the law; Right to social security; Migrants
Summary Background: This judicial review of the complainant’s rejected social security application assessed the constitutionality of the seven-year residence requirement for social security. The complainant moved to Hong Kong to live with her husband, but she became homeless because her husband passed away a day after her arrival and his residence was repossessed. The complainant applied for social security four months after arriving in Hong Kong. The complainant would have qualified for social security but for the new seven-year residence requirement.
Holding: Ribeiro J; Tang PJ, Lord Phillips NPJ & Ma CJ concurring: The Court held that policies formulated to uphold the right to social welfare in [expand title=article 36]Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.[/expand] of the Basic Law must be read together with “economic conditions and social needs”, as per [expand title=article 145]On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs. [/expand] [paras. 17 and 18].
Article 145 does not preclude reducing welfare entitlements if that maintains the sustainability of the welfare system [para. 37]. Although the Court did not recognize the right to social welfare as a fundamental right, it held that that population growth, an ageing population and rising social security expenditure were not rational justifications for the seven-year requirement, as there were other means of addressing those problems [paras. 66, 75, 96].
The Court indicated that deterring immigration, immigrants’ ability to rely on charities were not arguments for the reasonable proportionality of the seven-year requirement [sections L.1 and L.2]. The Court ruled that the Director’s discretion in and guidelines for waiving the seven-year requirement presented immigrants with “a very high threshold” [section L.3, para. 136].
Bokhary NPJ stated that the seven-year requirement violated the principle of equality before the law under article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights, the latter of which is taken from article 26 of the ICCPR. Bokhary NPJ also held that article 145 of the Basic Law implies that social security policies should be formulated progressively rather than retrogressively. Bokhary NPJ also cited Basic Law provisions that constitutionally guarantee articles 2 and 9 of the ICESCR, as well as CESCR’s concluding observations in 2005 on Hong Kong.
The Court unanimously declared the Director’s seven-year residence requirement to be unconstitutional, restoring the previous one-year requirement [para. 144].
Additional Comments: What distinguished Bokhary NPJ’s separate concurring judgement was his account for international human rights law as well as his emphasis on constitutional guarantees for all Hong Kong residents, including non-permanent ones like the complainant.
Link to Full Case: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90670