On 17 December 2013, the Court of Final Appeal of Hong Kong unanimously allowed the appeal of Madam Kong in Kong Yunming v The Director of Social Welfare (Kong). Kong, an applicant for Comprehensive Social Security Assistance (CSSA), was married to a Hong Kong permanent resident who died one day after she arrived in Hong Kong on a One-Way Permit (OWP) in 2005. She became homeless after her late husband’s public housing unit was repossessed. In 2006, the Director of Social Welfare (the Director) rejected her application for CSSA, as she did not meet the seven-year residence requirement (the Requirement). She sought judicial review on the basis that the Requirement contravened inter alia arts 25, 36 and 145 of the Basic Law.
The CSSA scheme was a means-tested social security scheme. The scheme originally had a one-year residence requirement, which remained until 2004 when the Requirement was introduced. This Requirement, however, did not apply to minors or where the Director’s discretion applied. The OWP scheme was devised to help reunite Mainland and Hong Kong family members, especially children of permanent residents. The Court declared the Requirement unconstitutional, restoring the former one-year requirement.
Right to social welfare
Ribeiro PJ examined the nature of the constitutional right to social welfare in Hong Kong. Art 36 provides that “Hong Kong residents shall have the right to social welfare in accordance with law”, and protects the right to social welfare effected through administrative social security schemes. Art 145 requires the government to “formulate policies on the development and improvement” of the social welfare system. Subject to constitutional review, the government could modify rights under art 36 by adopting policies developed in accordance with art 145, even if certain benefits were reduced or eliminated. The court would refrain from adjudicating the merits of socio-economic policies, unless the measure (i.e. the Requirement) was “manifestly without reasonable foundation” (MWRF).
The Director claimed that the Requirement was imposed to: defend the financial sustainability of the system against the growth of welfare applicants generated by the OWP scheme and a rapidly ageing population; and to curb increasing expenditure on CSSA. However, the Director failed to establish a rational connection between the Requirement and the sustainability rationale.
The Director also argued that the Requirement promoted uniformity in qualifying periods for heavily state-subsidised benefits, and that benefits should be withheld until an applicant has contributed to the Hong Kong economy. It was held that these objectives were insubstantial in terms of societal interests, and besides, the Requirement was a disproportionate means to achieve them. The Requirement also unreasonably excluded indigent mothers, who were overwhelmingly represented amongst new arrival CSSA recipients but who were insufficiently recognised for their contribution as caretakers of the children of permanent residents.
The Director sought to advance three proportionality arguments based on the following:
(a) the Requirement was widely publicised on the Mainland to deter potential indigent new arrivals;
(b) new arrivals, if denied CSSA, could rely on charities for help; and
(c) the Director’s discretion would be exercised in exceptional cases.
Ribeiro PJ found that none of the arguments qualified as reasonable mitigation of the hardship caused by the Requirement. It was therefore MWRF, given its contradictory policy consequences and insignificant benefits and supporting government statistics.
Bokhary NPJ held that the Requirement excluded non-permanent residents from the right to social welfare. Art 24 of the Basic Law guarantees equal constitutional protection for all residents, and art 36 applies to residents generally. The Requirement’s discrimination of different classes of residents was unjustifiable by “any standard of review”. The Requirement was also illegitimate as it contravened arts 2 and 9 of the ICESCR, which the Basic Law aims to implement. The increased residence requirement was an unwarranted retrogression in addressing basic needs.
Kong attracted much public controversy in Hong Kong. Whilst some people saw the decision as judicial permission for new immigrants to exploit welfare resources, others viewed it as an affirmation of the rule of law. How the Hong Kong courts will address new immigrants’ rights to other aspects of social welfare (e.g. public housing) remains to be seen. Kong represents a watershed in Hong Kong’s jurisprudence on socio-economic rights.