新聞摘要
孔允明對社會福利署署長
終院民事上訴2013年第2號
(原高等法院上訴法庭民事上訴2009年第185號)
上訴人:孔允明
答辯人:社會福利署署長
主審法官:終審法院首席法官馬道立、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院非常任法官包致金及終審法院非常任法官范理申勳爵
下級法院法官:高等法院原訟法庭法官張擧能(高等法院首席法官張擧能當時職銜);高等法院上訴法庭副庭長司徒敬、原訟法庭法官林文瀚及原訟法庭法官鮑晏明
判決:本院一致裁定上訴得直
判案書:由終審法院常任法官李義頒發主要判詞;由終審法院非常任法官包致金另頒發同意判詞
聆訊日期:2013年11月18至19日
判案書日期:2013年12月17 日
法律代表:
資深大律師陳文敏先生及大律師潘熙先生(由法律援助署指派、鄧王周廖成利律師行延聘)代表上訴人
御用大律師Pannick勳爵及大律師陳樂信先生(由律政司延聘)代表答辯人
摘要:
1. 2005年11月,上訴人獲中國大陸當局簽發單程證來香港與丈夫定居。丈夫在她來港後翌日逝世。2006年3月,上訴人申請綜合社會保障援助(下稱「綜援」)。社會福利署署長(下稱「署長」)拒絕她的申請,理由是自2004年1月1日起,所有綜援申請人按規定必須已居港至少七年。2004年之前,綜援申請資格在居港條件方面是居港一年。署長亦拒絕就上訴人的情況行使酌情權寬免該項居港規定。上訴人就署長拒絕批予綜援向社會保障上訴委員會提出上訴。該項上訴被駁回。
2. 上訴人提出司法覆核,質疑綜援計劃下的七年居港規定是否符合憲法。原訟法庭及上訴法庭均裁定該項規定合憲。上訴人繼而向終審法院提出上訴。
3. 終審法院一致裁定上訴人的上訴得直,並宣布該項七年居港規定屬違憲。根據《基本法》第36條,香港居民有權按照綜援計劃於1997年7月1日的情況(連同一項居港一年的限定條件),享受綜援計劃下的社會福利待遇,但政府有權依據按照《基本法》第145條而制定的政策,修改該等待遇。然而,任何其後對該等權利的限制,必須受到法院在憲法層面的覆核,而法院在覆核時將對有關限制進行相稱性的分析。對權利的限制必須與貫徹一項正當目的有合理關連,而對權利的侵犯不能明顯地沒有合理基礎。
4. 政府聲稱引入該項七年居港規定,正當的目的是爲了節約金錢,以確保社會保障制度可長期維持。終審法院裁定此項聲稱不成立。該項七年居港規定抵觸兩項重要社會政策,即 (i) 簽發單程證以便家庭團聚的政策,以及 (ii) 目的為使老化人口年輕化的人口政策。此外,有關證據顯示藉引入該項居港規定而節約到的金錢款額微不足道,由此導致本院斷定該項七年居港規定,與政府所聲稱的目的,即確保社會保障制度的可持續性,並無合理關連,或是一項明顯地沒有合理基礎的措施。
FACV No. 2 of
2013
IN THE COURT
OF FINAL APPEAL OF THE
HONG KONG
SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL
NO. 2 OF 2013 (CIVIL)
(ON APPEAL
FROM CACV NO. 185 OF 2009)
_______________________
Between :
KONG YUNMING
(孔允明) Appellant
and
THE DIRECTOR
OF SOCIAL WELFARE Respondent
_______________________
Before: Chief Justice Ma, Mr Justice Ribeiro PJ,
Mr Justice Tang PJ, Mr Justice Bokhary
NPJ,
Lord Phillips of Worth Matravers NPJ
Dates of
Hearing: 18-19 November
2013
Date of
Judgment: 17 December 2013
J U D G M E N
T
Chief Justice
Ma:
For the
reasons contained in the Judgment of Mr Justice Ribeiro PJ, this appeal must be
allowed. The Government’s policy, which
came into effect on 1 January 2004 requiring all recipients of Comprehensive
Social Security Assistance (CSSA) to have been a Hong Kong resident for at
least seven years, is not constitutional.
Mr Justice
Ribeiro PJ:
In this
appeal, it falls to the Court to consider the scope and effect of the right to
social welfare conferred upon Hong Kong residents by Article 36 of the Basic Law. It arises in the context of the applicant’s
claim for benefits under the Comprehensive Social Security Assistance (“CSSA”)
Scheme.
A. The appellant’s circumstances
The appellant
(“Madam Kong”) is a native of Guangdong.
She had previously been married but divorced her first husband in
1983. There were two sons of that
marriage and they reside on the Mainland.
In 2001, she met Mr Chan Wing, a Hong Kong permanent resident, and
married him in October 2003, having visited him in Hong Kong on a two-way permit
on several occasions. Mr Chan was not a
man of means. His health was not good
and he had been a recipient of social welfare since 1985.
Madam Kong
worked on the Mainland as a home helper for the elderly until 2005. She was unable thereafter to find work and,
when granted a one-way permit (“OWP”) by the Chinese authorities on 30 November
2005, she decided to come to settle in Hong Kong with her husband. She arrived here on 21 December 2005, then
aged 56, and was granted permission to remain for seven years. She thereupon became a non-permanent resident
of Hong Kong within the meaning of Article 24 of the Basic Law.
Sadly, her
husband (who was aged 76) died on 22 December 2005, the day after she arrived
in Hong Kong. In consequence, she found
herself homeless, since the Housing Authority immediately repossessed her late
husband’s public housing unit. She was
without family or friends in Hong Kong and was admitted to a shelter for street
sleepers.
On 20 March
2006, Madam Kong applied for CSSA but was unsuccessful. Her application was refused because the
Government’s policy has, since 1 January 2004, been that persons who have
resided in Hong Kong for less than seven years do not qualify for CSSA, save
where, in exceptional circumstances, the Director of Social Welfare (“the
Director”) waives that residence requirement as a matter of discretion. The policy was aimed at Mainland
immigrants. Madam Kong’s case was not
considered appropriate for the exercise of that discretion and her appeal to
the Social Security Appeal Board against that decision was rejected.
B. The decisions of the Courts below
She was
granted legal aid and instituted judicial review proceedings to challenge the
Director’s decision to reject her CSSA application on the ground that the
imposition of the seven-year residence requirement is inconsistent with
Articles 25, 36 and 145 of the Basic Law, as well as Article 22 of the Hong
Kong Bill of Rights.
On 23 June
2009, Mr Justice Andrew Cheung (as Mr Justice Cheung CJHC then was) dismissed
her application for judicial review.
His Lordship’s decision was upheld by the Court of Appeal.
C. The CSSA scheme
C.1 The nature and purpose of CSSA
The CSSA
scheme is a non-contributory, means-tested social security scheme. It is administered by the Social Welfare
Department (“SWD”) and is non-statutory.
The Government describes it as “a means-tested safety-net benefit
designed to ensure that people with limited or no other sources of income have
sufficient money to meet their basic needs.”
It aims in particular to provide “a safety net for individuals or
families who are unable to support themselves financially because of age,
disability, illness, low earnings, unemployment or family circumstances.”
As Mr Cheung
Doi-ching, giving evidence on the
Government’s behalf, explains, the basic needs “include food, clothing, fuel
and light, rent and schooling expenses for children ...” The Director sets a level of income which
represents the amount required to meet these essential needs and:
“The
difference between the total assessable monthly income of a family and its
total monthly needs as recognised under the Scheme in terms of various types of
payment will be the amount of assistance payable.”
C.2 The evolution of the residence requirement
At the end of
World War II, with China in the throes of a civil war, Hong Kong experienced a
massive influx of refugees which brought the post-war population of about
600,000 in 1945 up to 1,600,000 at the end of 1946. The population increased to 2,500,000 in 1956
and reached over 3,000,000 by March 1960.
It was
against that background that the Social Welfare Office was established in 1948,
providing rudimentary relief in kind, primarily in the form of cooked meals for
the relief of refugees. As welfare
assistance evolved, a residence requirement of 10 years was established as a
condition of eligibility for public assistance. In 1958, the SWD was formed and it provided
shelter for the destitute and continued to provide relief in the form of daily
cooked meals and dry rations. A year
later, in 1959, the residence requirement was reduced to five years.
The
inadequacies of the system were recognized in a report on “Aspects of Social
Security” prepared by an Interdepartmental Working Party in April 1967, and in
March 1970, a Memorandum for the Executive Council pointed out that the then existing scheme:
“... does not
enable the need to be met adequately in a substantial proportion of cases. To some extent this is because the levels of
assistance are too low. Mainly, however,
this is because the form in which assistance is normally given, namely dry
rations, takes no account of either the basic household needs required to
maintain a minimum standard of living, or the special needs arising from any
particular disability suffered by a member of a family.”
The
Memorandum recommended a change of policy, arguing that “the stage of
development now reached by Hong Kong justifies a more liberal policy, and one
which more closely meets the needs of the indigent” and that, as the Working
Party had recommended, “public assistance, in the form of financial aid, should
be accepted as a responsibility of the Government to be met by public funds”
with the aim of relieving the destitute.
It proposed substituting cash grants on a means-tested basis for
assistance in kind. It is of particular
present relevance that it also proposed that the residence requirement be
reduced to one year:
“The second
proposal is that the present criterion of a minimum period of five years’
residence in the Colony should be reduced to one year, with the discretion of
the Director of Social Welfare to pay assistance to people who have not
fulfilled this condition, if, in their particular circumstances, he considers
it necessary having regard for other available sources of aid. The residential criterion was established in
1948 at 10 years and reduced in 1959 to 5 years. The thinking behind the residential qualification
was that public assistance should not be made so freely available as to attract
a mass influx of new immigrants from China into the Colony. As a result, voluntary agencies, including
some which are subvented by Government, have necessarily had to assume the
responsibility for assisting persons who do not have this residential
qualification. The situation regarding
immigration has changed considerably in recent years and it is believed that
this residential qualification could safely be reduced to one year, although
for reasons associated with our external relations it would be possibly unwise
at the present time to remove it entirely.”
As pointed
out by Ms Polly Choy Bo Chun on the
Government’s behalf, the Governor-in-Council endorsed those recommendations on
17 March 1970 and the Legislative Council’s Finance Committee approved the
necessary funding on 17 June 1970. The
system then put in place developed into the present CSSA scheme which was
introduced in its present form with effect from 1 July 1993.
From 1970
onwards, one year’s residence was the residential condition of eligibility for
the benefit. It was only on 1 January
2004 that the new requirement was adopted, resulting in Madam Kong having to
wait seven years before qualifying for CSSA.
I shall return later to examine the terms upon which the seven-year
requirement was introduced and the Government’s justification for its
introduction.
D. The constitutional provisions relied on by
Madam Kong
By Article
36, the Basic Law provides:
“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.”
It must be
read together with Article 145 of the Basic Law which states:
“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.”
The focus of
this appeal is on the right to “social welfare in accordance with law” as laid
down by those two Articles.
The case as
argued below centred on the right to equality before the law and protection
against discrimination. Thus, reliance
was primarily placed on Article 25 of the Basic Law which provides that “All
Hong Kong residents shall be equal before the law”; and on Article 22 of the
Bill of Rights which states:
“All persons
are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.”
Professor
Johannes Chan SC, who appeared for Madam
Kong did not abandon the case based on equality, but submits that the central
complaint involves the Government’s adoption of the seven-year requirement,
whether framed as a contravention of Article 25 or of Article 36. Pursuing the case under Article 36 has the
advantage of dispensing with proof of the element of discrimination. If, as Madam Kong submits, it was an
infringement of her right to social welfare under Article 36 for the Government
to introduce the seven-year residence restriction, her challenge succeeds
without her having to show that she was the victim of discrimination.
I shall
accordingly focus in this judgment on the allegation that refusal of Madam
Kong’s claim for CSSA benefit contravened her right as a Hong Kong resident to
“social welfare in accordance with law”.
E. The nature of the Article 36 right
As is true of
many constitutional provisions, Article 36 is in very broad terms, conferring a
constitutional right on Hong Kong residents “to social welfare in accordance
with law”. Apart from the CSSA scheme,
which forms the mainstay of social
security in Hong Kong, the SWD provides a wide range of services. They include family and children services;
services for the elderly; rehabilitation and medical social services; services
for offenders; services for community development; and services for young
people. There is obviously room for
argument as to whether all or only some part of those services come, as a
matter of law, within the concept of “social welfare” for the purposes of
founding a constitutional right under Article 36. In my view, however, since the CSSA scheme aims
to provide a welfare benefit addressing basic, “safety net” needs – a
fundamental function of any social security system, such benefit is a clear
case coming within the Article 36 concept of “social welfare”. It was not suggested otherwise. The question whether any other benefits and
services provided by the SWD also fit within that concept must be left
open. Other facets of the system
operated by the SWD might well give rise to different considerations and it
should not be assumed that what is said in this judgment can necessarily be
extrapolated for general application across the spectrum of services provided.
E.1 “In accordance with law”
Before
examining the substantive content of the Article 36 right, one argument raised
on Madam Kong’s behalf should be disposed of.
Professor Chan endeavoured to argue that restricting the pre-existing
right to CSSA by imposing a seven-year residence requirement was
constitutionally invalid because it had been effected administratively rather
than by legislation. The argument was
that the new policy was therefore not “in accordance with law”.
I am unable
to accept that argument. Article 145
recognizes and endorses the validity of “the previous social welfare system”
which consisted of a non-statutory system of administrative rules and policies. Accordingly, reading Article 36 together with
Article 145, the intention of the Basic Law must be taken to be that such
administrative system – consisting of rules that are accessible, systematically
applied and subject to a process of administrative appeal – is to be treated as
a system providing “social welfare in accordance with law” within the meaning
of Article 36.
Indeed, it is
difficult to see how the argument helps Madam Kong. If, contrary to the view just expressed, it
were correct to say that a purely administrative system does not provide
“social welfare in accordance with law”, it would be difficult to see what
rights are conferred by Article 36.
A system of
social welfare catering for a wide range of clients in a wide range of
different circumstances may well be better served by the operation of
transparent and predictable administrative criteria rather than by having to
have each benefit spelt out through a legislative process.
The evidence
also shows that there was in fact very considerable interaction between members
of the Administration on the one hand, and the Legislative Council; members of
its Welfare Services Panel; and the Panel’s Subcommittee; on the other, in
relation to the new residence requirement.
There was therefore in fact a substantial measure of public consultation
and accountability. The funding of the
social welfare system as a whole is subject to approval by the Legislative
Council’s Finance Committee.
E.2 The Court of Appeal’s approach to the Article
36 right
The Court of
Appeal rejected Madam Kong’s argument as it was then put regarding the content
of the Article 36 right, namely, that it “confers upon all Hong Kong residents
a right to social welfare subject only to such restriction as is limited by
law; which is to say, statute law or common law formulated with such precision
as the occasion demands and which is accessible”.
Stock VP saw
as incurable defects in that argument, among other matters, its attempt to
confer a right to all forms of social welfare regardless of eligibility
criteria or level of benefit; its
tendency to ignore the sheer width and variety of social welfare benefits in
Hong Kong while “cherry-picking” the one CSSA facet; and its isolation of the Government’s social
welfare obligations from its other cost-bearing social obligations and
functions. I would respectfully agree
with Stock VP in rejecting the argument so put.
His Lordship
went on to ask rhetorically: “What then of Article 36?” His answer was that it was “... strictly
speaking, not necessary for the purpose of the instant exercise to decide what
article 36 does mean. It suffices, for the present purpose, to conclude, as I
do, that it does not bear the meaning for which the applicant contends.” His Lordship, however, added:
“...But one
might nevertheless venture to suggest what article 36 read with article 145
envisage. With the previous social
welfare system as a base, they envisage the continuous formulation and
promulgation of policy in the realm of social welfare for the benefit of Hong
Kong residents – as opposed to visitors – in the light of such economic
conditions and social needs as prevail from time to time, with the objective of
developing and improving the system, it being manifestly implicit that that
objective can only be met if the system be nurtured and sustained for the
meaningful benefit of future generations as well as the present. In order to meet these requirements and in
any event inherent in any such system, the right to social welfare carries with
it qualifying conditions. Hong Kong
residents are to enjoy that right, so long as they meet the qualifying
conditions, for the right itself includes the conditions. The conditions must be lawful, so that
conditions that are discriminatory are not permissible.”
With respect,
I do not think that an adequate approach.
Its lays the emphasis entirely on Article 145 and deprives Article 36 of
any meaningful effect. It focuses on the
Administration’s role in formulating social welfare policies, regarding it as
free to define the eligibility and other conditions for any particular benefit,
provided only that such conditions are not discriminatory. But that allows the equality rights entirely
to eclipse the welfare right. The
equality guarantees derive from Article 25 of the Basic Law and Article 22 of
the Bill of Rights. To say that the
Administration cannot impose discriminatory eligibility conditions gives effect
to those guarantees. But it fails to
attribute any meaning to the first sentence of Article 36 which states: “Hong
Kong residents shall have the right to social welfare in accordance with
law”.
E.3 The content of the Article 36 right
Those words
unequivocally declare the Basic Law’s intention to create an independent head
of constitutional protection in the context of social welfare rights. True it is that Article 36 does not – and
obviously cannot – descend into particulars as to specific welfare benefits or
their eligibility and other conditions.
But that is because, like many other constitutional provisions, Article
36 is intended to operate as a framework provision. Read together with Article 145, it provides
the framework for identifying a constitutionally protected right to social
welfare: Once it is clear that an administrative scheme such as the CSSA scheme
has crystallized a set of accessible and predictable eligibility rules, those
rules may properly be regarded as embodying a right existing “in accordance
with law”, qualifying for Article 36 protection.
Article 145
supports this view. It adopts the
previous social welfare system as the basis for the Administration’s
formulation of policies after 1 July 1997 to develop and improve that previous
system in the light of economic conditions and social needs. Article 145 therefore endorses the rules and
policies established under the previous system and, as discussed above, it implicitly regards them as rules
established “in accordance with law” and thus capable of constituting
particular rights protected by Article 36.
The relevant
right given constitutional protection by Article 36 in the present case is the
right defined by the eligibility rules for CSSA derived from the previous
system of social welfare and in existence as at 1 July 1997. Crucially, this means that Article 36 confers
constitutional protection on the rules which laid down a one-year, and not a
seven-year, residence requirement as a condition of eligibility for CSSA.
E.4 Modifying rights protected by Article 36
Social
welfare rights which qualify as rights protected by Article 36 are subject to
modification pursuant to policies generated by the Government in accordance
with Article 145, as that Article plainly envisages. The importance of a right being recognized as
a social welfare right protected by Article 36 is that any restriction
subsequently placed on that right is subject to constitutional review by the
Courts on the basis of a proportionality analysis (as Lord Pannick QC,
appearing for the Director
accepted). The Government was therefore
entitled to change its policy and to impose the seven-year requirement in place
of the one-year requirement. But it is
also clear that such modification is subject to constitutional review.
I pause at
this stage to dispose of an argument made on Madam Kong’s behalf which cannot
be accepted. It was submitted by
Professor Chan that because Article 145 authorizes the Government to formulate
policies “on the development and improvement of this system in the light of the
economic conditions and social needs”, it can only make changes which improve
welfare benefits (in the sense of making them more generous) and cannot
introduce a “retrogressive” change by imposing a much longer qualifying period
of residence. But Article 145 does not
address, let alone freeze, the eligibility conditions or the level of any
particular benefits. What it does is to
make it clear that the Government may formulate policies “on the development
and improvement of [the previous] system”.
Lord Pannick rightly submitted that Article 145 does not preclude the
elimination or reduction of particular welfare benefits if that proves
necessary to develop, improve or maintain the sustainability of the welfare
system as a whole.
E.5 Constitutional review where rights are
protected by Article 36
As this Court
has recognized, some rights are non-derogable and absolute, in which case, no
infringement is permitted and no question of proportionality arises. But in other cases, it is well-established
that the law may validly create restrictions on constitutionally protected
rights provided that each such restriction can be justified on a
proportionality analysis.
The
starting-point is the identification of the constitutional right engaged – Article 36 in the present case. The next step is to identify the legal or
administrative measure said to infringe or restrict that right – the imposition
of the seven-year residence requirement in the present case (to which I shall
return in greater detail). The Court
then asks whether that restriction pursues a legitimate societal aim and,
having identified that aim, it asks whether the impugned restriction is
rationally connected with the accomplishment of that end. If such rational connection is established, the
next question is whether the means employed are proportionate or whether, on
the contrary, they make excessive inroads into the protected right.
In some cases
involving fundamental rights such as freedom of expression or freedom of
peaceful assembly, or rights bearing on
criminal liability such as the presumption of innocence, the Court has regarded the restriction as
disproportionate unless it goes no further than necessary to achieve the
legitimate objective in question. This
is sometimes called the “minimal impairment” test. Similarly, in discrimination cases, where the
differentiating inroad is based on certain personal characteristics sometimes
referred to as “inherently suspect grounds” such as race, colour, sex or sexual
orientation, the Court will subject the impugned measure to “intense scrutiny”,
requiring weighty evidence that it goes no further than necessary to achieve
the legitimate objective in question.
However, as
the Chief Justice noted in Fok Chun Wah v Hospital Authority, “... it would not usually be within the
province of the courts to adjudicate on the merits or demerits of government
socio-economic policies”. Where the
disputed measure involves implementation of the Government’s socio-economic
policy choices regarding the allocation of limited public funds without impinging
upon fundamental rights or involving possible discrimination on inherently
suspect grounds, the Court has held that it has a duty to intervene only where
the impugned measure is “manifestly without reasonable justification”. That is a test initially applied by the
European Court of Human Rights while according a broad margin of appreciation
to member States in setting and implementing their socio-economic
policies. As the Chief Justice points
out, the margin of appreciation principle has previously been adapted to apply
in the context of our domestic law. It
is appropriate similarly to apply the “manifestly without reasonable
foundation” test in our domestic context.
Professor
Chan sought to argue that the challenged restriction in the present case should
be regarded as a measure that contravenes fundamental rights or engages
inherently suspect grounds of discrimination.
I do not agree. The Article 36
right to social welfare is not a fundamental right but a right which
intrinsically involves the Government setting rules determining eligibility and
benefit levels. It arises in an area
where the Courts acknowledge a wide margin of discretion for the
Government. As the Chief Justice pointed
out in Fok Chun Wah, the adoption of a
residence requirement as a criterion of eligibility for social welfare benefits
has often been upheld and is generally not regarded as engaging any of the
inherently suspect grounds.
Accordingly,
in my view, insofar as the disputed restriction in the present case is rationally
connected to a legitimate societal aim espoused by the Government, the
restriction will only be held to be disproportionate if it is manifestly
without reasonable foundation. I turn
then to apply these principles to the facts of the present case.
F. The right, the new restriction and the
Director’s discretion
As we have
seen, the right protected by Article 36 is the administratively defined right
of Hong Kong residents who pass the means test and are not otherwise
disqualified, to obtain CSSA payments after having resided here for one
year. That was the established position
as at 1 July 1997 when Article 36 took effect.
There is no dispute that but for the seven-year residence requirement,
Madam Kong would have qualified for CSSA after residing here for one year. Her income has at all material times fallen
below the level defined by the Director as necessary to meet basic needs. The seven-year requirement therefore removed
the safety net that would otherwise have been deployed in her case.
It is
important to note the precise terms of the new restriction. At a meeting of the Executive Council on 3
June 2003, the Council advised and the Chief Executive ordered that with effect
from 1 January 2004:
“To be
eligible for CSSA, a person must have been a Hong Kong resident for at least
seven years ...
Children aged
below 18 are exempted from any prior residence requirement.
Current Hong
Kong residents (i.e. those who have become Hong Kong residents before the
seven-year residence rule comes into effect, viz. 1 January 2004 as proposed)
[are also exempt ].
In
exceptional circumstances, assistance may be granted at the discretion of the
Director of Social Welfare (DSW) to a person who does not meet the residence
requirement.”
The new
residence requirement therefore does not apply to all new arrivals (the term
used by the Director describe immigrants who have not yet resided here for
seven years or more). Children under 18
(who had previously been subject to the one-year residence requirement) and
current Hong Kong residents who pass the
means test therefore qualify for CSSA payments.
So do other new arrivals for whom the requirement is waived as a matter
of discretion. The guidelines for the
exercise of that discretion laid down by the Director are set out later in this
judgment.
G. The Government’s purpose in adopting the
seven-year rule
Turning to
the next stage of the analysis, it is necessary to ask whether the seven-year
restriction on the Article 36 right pursues a legitimate societal aim and, having
identified that aim, to ask whether the restriction is rationally connected
with the attainment of that end.
The
restriction was recommended by the Task Force on Population Policy (“the Task
Force”) chaired by the then Chief Secretary, Mr Donald Tsang, in its Report
issued on 26 February 2003.
It is
worthwhile emphasising that a purpose relied on to justify a restriction on a
constitutional right must be a legitimate societal aim. In other words, it has to be an aim which
furthers the legitimate interests of society.
The Government might simply state that it is cutting expenditure with
the aim of “saving money”. But saving
money would not in itself be a legitimate aim.
The purpose and effect of the cut in expenditure would have to be taken
into account. If the cut in expenditure
meant that the Government was abdicating an important responsibility which the
government ought to discharge in the public interest, the saving of money by
that means would not be a legitimate aim.
To take an extreme example, it would not be a legitimate aim to cut
expenditure by say, halving the number of ambulances or fire engines, thereby
endangering public safety. In the
present case, the Government is not saying that its aim is simply to save
money. It is saying that the restriction
was introduced to save money because such savings are necessary to ensure the
sustainability of the social security system.
Thus,
explaining the new seven-year rule to the Legislative Council’s Panel on
Welfare Services (“the Welfare Panel”) on 10 March 2004, the Director stated:
“The new
residence requirement for social security benefits was recommended by the Task
Force on Population Policy. Its aim was
to provide a more rational basis for the allocation of public resources in the
light of rising social expenditure and limited financial resources and to
ensure the long-term sustainability of the provision of social security
benefits to the community.”
That is how
the case has been argued. Andrew Cheung
J noted that the Director’s submission was:
“... that the
legitimate aim of the seven-year residence requirement is to adopt a proper
basis for the allocation of finite public resources in the light of rising
social expenditure so as to ensure the long term sustainability of the provision
of social security benefits to the society as recommended by the 2003 Taskforce
on population.”
It was an
argument that the Court of Appeal accepted.
Stock VP stated:
“...ample
justification has been provided for the contention that in order to sustain the
viability of the social welfare system, the eligibility criteria required
amendment. That was the result of
anticipated problems posed by an ageing population, a low birth rate, by the
fiscal deficit at the time of the decision, the continuing flow of OWP holders
with a concomitant absence of control of immigration intake from that
direction, decreasing emigration and the fact that the scheme was a
non-contributory one.”
In Mr
Cheung’s Affirmation, three related
factors are said to contribute to the need for measures to safeguard the
system’s sustainability: (i) the policy of accepting immigrants from the
Mainland under the OWP scheme; (ii) Hong Kong’s ageing population; (iii) the
rise in expenditure on CSSA. The
Government regards the seven-year restriction as a rational response to the
sustainability problem so arising:
“Against the
background of a serious fiscal deficit and the implication of demographic
trends and characteristics identified in the [Task Force] Report, the
Administration took the view that there was a strong case for applying a
uniform 7-year residence requirement for providing heavily subsidized social
services. In respect of CSSA, the
Administration considered a 7-year residence requirement for new arrivals aged
18 or above to be a rational basis for allocation of social resources ...”
Mr Cheung
also puts forward certain other arguments championing the reasonableness of the
rule, which I shall consider later. I
wish first to focus on the question whether a rational connection exists
between the avowed purpose of ensuring the financial sustainability of the
social security system on the one hand and the seven-year residence requirement
on the other. I propose to examine each
of the three factors said to underlie the sustainability problem and consider
whether they provide or contribute to a rational justification for the
seven-year restriction.
H. The OWP scheme
H.1 The problem
The Task
Force Report explains the background and
problem which had to be dealt with:
“Under
Article 24(2)(3) of the Basic Law as interpreted by the NPCSC Interpretation
dated 26 June 1999, Mainland children born to Hong Kong permanent residents
have the right of abode in Hong Kong provided that at least one of their
parents have obtained permanent resident status by birth or residence at the
time of birth of the children. In
anticipation of the implementation of the Basic Law, the daily OWP quota was
increased from 105 to 150 in 1995 to facilitate the entry of these children.
The remaining places are allocated to Mainland spouses and other OWP applicants
with no right of abode who generally have to wait for a longer time before they
can settle in Hong Kong. Currently, spouses in Guangdong have to wait for about
seven to eight years.
The
discrepancy in the times of arrival in Hong Kong between the CoE children and their Mainland parents often gives rise
to separated families. Concern has been expressed in the community about the
various problems that are believed to have resulted from this situation,
problems such as inadequate parental care, economic hardship if the Hong Kong
parent has to give up a job to look after the children, adverse impact on
family relationship, etc. As the number of new arrivals from the Mainland
continues to grow, the problem of split-families also grows. Many Legislative Council Members, academics
and opinion leaders whom we approached have made the point strongly that the
situation has to be properly addressed and that a proper balance has to be
struck between orderly admission of new arrivals from the Mainland, both
children and spouses, and upholding family unity.”
H.2 Family reunion as the main source of population
growth
To address
this problem, the Government, in cooperation with Mainland authorities, adopted
the OWP scheme. Mainland authorities
issue OWPs in accordance with Mainland law, permitting the exit of Mainlanders
to Hong Kong for settlement. As the Task
Force Report explains:
“The OWP
Scheme is a scheme devised primarily to facilitate families with immediate
members (spouses and children) residing in the Mainland to be reunited in Hong
Kong. OWP holders can be broadly divided into two groups: children of Hong Kong
permanent residents with Certificate of Entitlement (CoE); and spouses and
other dependants. The CoE children are permanent residents and have right of
abode in Hong Kong. Spouses and other dependants who enter Hong Kong on OWPs
are non-permanent residents but may become permanent residents after having
ordinarily resided in Hong Kong for a continuous period of not less than seven
years.”
The OWP
scheme has become “the single most important immigration policy that shapes
Hong Kong’s demographic growth and composition”, accounting for some 93% of
population growth from 1997 to 2001.
Applying the increased daily quota of 150, about 55,000 Mainland immigrants are admitted
each year. The Task Force Report
suggested that some 168,000 persons were in the queue waiting for a OWP. The Government has been content to maintain
that rate of inflow. In a press release
issued upon publication of the Task Force Report on 26 March 2003, the then
Chief Secretary stated:
“We respect
the right of family reunion and the Right of Abode conferred by the Basic Law,
and we have concluded that the present daily allocation of 60 within the 150
quota for children with right of abode in Hong Kong is appropriate. ... For the
time being, the total daily quota of 150 will remain unchanged. The SAR Government will liaise closely with
the Mainland authorities with regard to the numbers and the allocation among
the categories. If there is evidence that the demand falls, we will discuss
with the Mainland authorities to reduce the quota.”
Most new
arrivals entering under the OWP scheme are children with the right of abode in
Hong Kong and Mainland spouses coming to join spouses already resident
here. About half of the children tend
to be under 18. So in 1996, 48% were
aged 19 or below; and in 2002/03, 51.6%
were 18 or below. The adult OWP holders
are usually wives of Hong Kong residents.
Thus, in 2001, 65% of all OWP holders entering Hong Kong were females,
mostly housewives.
It is the
Government’s policy to facilitate the integration of new arrivals in the
community and the Task Force Report points out that:
“...there are
few significant differences in university attendance between native-born
children and the Mainlanders who came to Hong Kong before the age of nine. It is only among the ‘older’ Mainland
children who arrived in Hong Kong after the age of nine that significant
differences in university attendance exist. This suggests that the younger an
OWP applicant is admitted, the easier it will be for him or her to adapt to
Hong Kong’s education system.”
The OWP
scheme therefore favours younger children as immigrants and they are given the
largest sub-quota (60) of the 150 daily quota.
They are likely to be qualified to settle in Hong Kong before their
parent (usually the mother) on the Mainland (spouses separated for over 10
years being given a sub-quota of 30).
However, younger children obviously need parental care. Since 2002, Mainland authorities have facilitated
visits by spouses to their families in Hong Kong by allowing them to apply for
two-way permits as and when they wish once they have applied for a OWP. This effectively allows family reunion to
take place while the Mainland parent’s own OWP is pending. The Task Force Report recommended that such
spouses should be encouraged to take advantage of this to familiarise
themselves with Hong Kong conditions and to help themselves decide whether to
settle here.
H.3 How the OWP scheme bears on the seven-year
requirement
It is evident
from the foregoing that no support for the CSSA seven-year requirement can
rationally be derived from any aspect of the OWP scheme. The humane and laudable purpose of that
scheme is the promotion of family reunion, respecting the right of abode of
children of Hong Kong permanent residents under the Basic Law. It gives preference especially to younger
children because they integrate more easily.
And realistically, to provide them with adult carers, their Mainland
parents, usually their mothers, are encouraged to come to Hong Kong on two-way
permits pending issue of the OWP applied for, eventually settling here as Hong
Kong residents in their own right.
Where such a
reunited family is poor, having means-tested income which does not cover the
basic needs of its members, one would expect the social security scheme to
operate in harmony with the OWP scheme and so make CSSA benefits
available. While it may be that the
one-year residence requirement has to be accepted as the basic right to social
welfare historically defined, it would be wholly irrational, when viewed from
the perspective of the OWP scheme, to raise it to a seven-year
requirement. Although the Task Force
Report contains considerable discussion of the OWP scheme, it provides no
rational basis for adopting the seven-year rule. On the contrary, its logic demands the
disapplication of that rule in relation to OWP arrivals.
That logic
has only partly been respected. In line
with encouraging younger immigrant children to come, new arrivals under 18
years of age have been exempted from the seven-year restriction, but –
illogically – there is no such exemption for Mainland parents who come to take
care of them. It follows that unless the
operative restriction is waived as a matter of discretion – a matter discussed
further below – such parents have to
find some way to cope over a seven-year period even though a means test has
shown that they are without sufficient income to meet their basic needs.
That
counter-productive aspect of the seven-year requirement has not escaped members
of the Welfare Panel. At its meeting
held on 10 March 2003, Ms Li Fung-ying is recorded as having stated that:
“... the
seven-year residence requirement for the CSSA Scheme [was] a policy marred with
contradiction, as its having the effect of deterring potential new arrivals to
settle in Hong Kong was at variance with the policy of family reunion.”
And after the
seven-year requirement had been in place for some four years, the Sub-Committee
appointed to review the arrangements for CSSA taking into consideration the views
of the public, service users and non-governmental organisations providing
welfare services, reported to the Welfare Panel
that deputations:
“...informed
the Subcommittee that many new-arrival single mothers faced great financial
hardship for being unable to meet the residence requirement. They were unable
to find a suitable employment because of their low educational attainment and
the need to take care of their young children. Given that these new arrivals
were not eligible for CSSA, they had to rely on their child(ren)’s CSSA for a
living.”
It is clear,
to say the least, that the OWP scheme provides no support whatsoever for the
Government’s alleged legitimate aim of ensuring the welfare system’s
sustainability and no support for the existence of any rational connection
between that aim and the impugned seven-year requirement. The policies underlying the OWP scheme
militate against that restriction.
Hong Kong’s
ageing population
The second
factor said to underlie the Government’s avowed legitimate aim is the need to
cater for an ageing population. The Task
Force identified the problem in the following terms:
“In 2001,
Hong Kong’s total fertility rate reached an extremely low level of 927 children
per 1,000 women, well below the replacement level of 2,100 children per 1,000
women. At the same time, life expectancy
at birth is projected to reach 82 for men and 88 for women in 2031, one of the
longest in the world.
Hong Kong’s
population is aging. A quarter of its
population is expected to be aged 65 or above by 2031. More significantly, the size of the workforce
will shrink as the prime working age population declines.”
In every
society, the working age population economically supports children below, and
the elderly above, working age. The
demographic pattern identified above undoubtedly presents a serious long-term
problem since it projects a shrinking working age population having to support
a growing number of long-lived elderly dependents. The Task Force Report projects the following
dependency ratios from 2002 to 2031:
Year Child Elderly Overall
2002 223 158 381
2006 203 162
365
2011 180 164
344
2016 178 198
376
2021 179 245
424
2026 180 313
493
2031 182 380 562
These figures
indicate the projected numbers of children (those under 15) and the estimated
numbers of elderly persons (those over 65) who will be dependent on every 1,000
persons between the ages of 15 and 65.
Thus, in 2002, for every 1,000 persons aged between 15 and 65, there
were estimated to be 223 child dependents and 158 elderly dependents with a
total overall dependency ratio of 381.
It was projected that over the years, the child dependency ratio would
decline while the elderly dependency ratio would markedly increase from the
year 2016 onwards.
This
obviously has serious implications for the cost of caring for the elderly. The Task Force puts this as follows:
“One serious
economic problem caused by an accelerated increase in the number of elderly
people in the population is social security payments. The Government is
committed to providing financial assistance to elderly people in need. More
than 600,000 persons aged 60 or above receive financial assistance through
either the CSSA or the Old Age Allowance (OAA). ... Total Government
expenditure in financial assistance for elders is estimated to be $11.8 billion
in 2002-03, accounting for 5.4% of recurrent public expenditure and
representing an increase of 50% when compared to the $7.8 billion paid out in
1997-98. The CSSA and OAA Schemes are funded entirely from General Revenue and
are non-contributory. Should the rate of payment and eligibility for the OAA
remain unchanged, it is estimated that by 2031, the total payment for OAA alone
will rise to $10.4 billion. That for CSSA on elderly cases is estimated to
leap-frog to $20.8 billion... Another serious economic problem caused by an
aging population is steep increases in healthcare expenditure.”
The
Government is undoubtedly right to regard the problems of our ageing population
as serious and right to lay down policies aimed at mitigating those problems
with a view to ensuring the long-term sustainability of our social welfare
system. But what, if any, rational
connection is there between such mitigation and the impugned policy of
excluding new arrivals from receiving CSSA until they have resided here for
seven years? I do not think any such
connection exists.
Given that
one of the root causes of the ageing population problem is Hong Kong’s low
fertility rate, and given that the OWP scheme has become “the single most
important immigration policy that shapes Hong Kong’s demographic growth and
composition”, with Mainland new arrivals accounting for 93% of our population
growth between 1997 and 2001, a rational
response to the ageing problem ought to involve encouraging the entry of young
immigrants to rejuvenate our population.
This was recognized by the Task Force which acknowledged that:
“...OWP
holders, in particular young children, have contributed significantly towards
mitigating the negative effects of low fertility and population aging by
replenishing the dwindling number of our younger age cohorts.”
As has already
been pointed out, the Government has only partially acted on that logic,
exempting those under 18 from the seven-year residence eligibility criterion
for CSSA, but applying the restriction to parents who arrive to be reunited
with and to care for such children. To
that extent, far from the seven-year requirement being a rational measure to
mitigate the ageing population problem (and thereby contributing to the
sustainability of our social security system), it is a counter-productive and
irrational measure.
The evidence
regarding social security payments to the elderly also belies any rational
connection between the new restriction and the Government’s avowed aim of
ensuring sustainability. The seven-year
restriction does not affect all elderly CSSA recipients, but only new arrivals
who are elderly. Such persons constitute
only a small proportion of all new arrivals.
The elderly are given a relatively low priority and thus are allotted a
small sub-quota under the OWP scheme.
Thus, the Task Force Report
states that the 150 daily quota was allocated according to the following
sub-quotas: 60 for children with Certificates of Entitlement; 30 for spouses
separated for over 10 years; 60 for persons in all other categories, including
spouses separated under 10 years; unsupported children coming to join relatives
in Hong Kong; persons coming to Hong Kong to take care of their unsupported
aged parents; unsupported elderly people coming to join relatives in Hong Kong
and persons coming to Hong Kong to inherit legacies.
Of the
relatively few elderly persons who do enter under the OWP scheme, only a small
proportion receive CSSA and Old Age
Allowance. And even before the
seven-year requirement was introduced on 1 January 2004, there was already in
place a stringent requirement in respect of Old Age Allowance: to be eligible,
a person had to have resided in Hong Kong for not less than five years since
attaining the age of 60. It follows
that savings to CSSA expenditure that could be achieved by raising the requirement
to seven years for new arrivals would be minimal and could hardly qualify as a
response to the ageing population problem, aimed at ensuring the sustainability
of the welfare system.
J. The rise in CSSA expenditure
There is no
doubt that in the decade leading up to 1 January 2004, spending on CSSA had
risen sharply and that it was the Government’s duty to consider policies aimed
at ensuring its sustainability.
The first
point to note, leaving aside for the moment the seven-year restriction, is that
the Government did indeed confront the problem of steeply rising expenditure
and did take action aimed at safeguarding its sustainability. The question
which arises is whether, in the light of those measures, there is any rational
basis for regarding the seven-year restriction on the Article 36 right as such
a measure.
J.1 The December 1998 Report
The problem
of sharply increasing expenditure was recognized and subjected to detailed
consideration by an Inter-Departmental Steering Group chaired by the Director,
which published a report dated December 1998.
The Report stated:
“The current
review was prompted by growing public concern about the rapid growth in the
CSSA caseload and its expenditure, the high levels of CSSA benefit for larger
families as compared with market wages, and the sharp increases in the number
of people of working age turning to CSSA.
There is also an increasing perception that some people are abusing the
system.”
Key figures
and concerns were given as follows:
“(a) The CSSA caseload rose by 146% from 88,600 in
September 1993 to 218,400 in September 1998.
(b) The CSSA expenditure increased by nearly three
times from $2.4 billion in 1993/94 to $9.4 billion in 1997/98.
(c) The average monthly CSSA payments for
households of four or more persons are now considerably higher than low-end
wages.
(d) The number of ‘unemployment’ CSSA cases
increased over six times from 3,500 in September 1993 to 26,200 in September
1998, representing 12% of the total CSSA caseload. During the same period, the ‘single parent’
CSSA cases increased by 268% from 5,700 to 20,900, representing 10% of the
total CSSA caseload.
(e) There have been increasing calls for the
Government to take more effective measures to prevent abuse of CSSA. A special hot-line for reporting suspected
CSSA fraud cases was set up by the Social Welfare Department (SWD) in August
1998. Up to the end of September 1998,
it had received some 1,300 calls.”
The estimated
CSSA expenditure for 1998/99 is expected to be above $13 billion. The Government will spend much more on CSSA
in the years to come even if all the SG’s recommendations (see paragraph 8-29
below) are accepted and implemented.”
The Steering
Group was therefore examining increases in CSSA expenditure over the scheme as
a whole, seeking to identify contributing factors and seeking ways to bring
such expenditure under control. There is
no suggestion that CSSA claims by new arrivals merited any special attention or
that they were a cause for concern.
The Steering
Group made a series of policy recommendations, applicable across-the-board,
mainly aimed at encouraging CSSA recipients to get jobs. To take one example,
the Report noted that CSSA payments made to larger households resulted in per
capita income that was larger than the per capita income of non-CSSA households
in the lowest expenditure group, with
the likely result that able-bodied persons would opt to remain on welfare
rather than getting a job. In response,
the Report recommended an across-the-board reduction in the standard rate of
CSSA of 10% for households with three able-bodied adults and children; and of
20% for households with more than three such persons. It contained a calculation of the percentage
savings to be achieved by such measures, ranging from a saving of 5% in single
member households to 17% in households with five members. That recommendation was implemented in June
1999. Such a policy, creating
disincentives against the development of a culture of dependence, may readily
be seen as rationally aimed at ensuring sustainability.
J.2 Reduction in the standard rate
Another
rational response to concerns about mounting expenditure and sustainability was
the order of the Chief Executive in Council to reduce standard rates of CSSA
across-the-board by 11.1% to take effect on various dates in 2003 and
2004.
The
Legislative Council Brief described the problem faced as involving unacceptable
unabated growth in welfare expenditure.
It noted that upward adjustments had been made to standard rates by 6.5%
in 1997-98 and 4.8% in 1998-99.
However, as at December 2002, the total CSSA caseload was 266,571,
representing a year-on-year growth of 10.3%, with the “unemployed” CSSA
caseload having increased by 40.3% over the same period. This led to the projection that the approved
provision of CSSA in 2002-03 of $16 billion (already up 11.1% on actual the
expenditure of $14.4 billion in 2001-02) would be insufficient. It was also estimated that the requirement
for 2003-04 would be well in excess of $18 billion.
This was seen
as a threat to the system’s sustainability:
“Firstly,
against the general economic situation and high unemployment, the number of
families and individuals requiring support by Government is bound to increase.
To sustain this safety net, we have to ensure our existing resources go further
to meet the increasing demand. Secondly,
prices for goods and services have come down considerably even as measured
specifically by the SSAIP. ... Thirdly,
the HKSAR Government is facing some unprecedented budget deficits and of the
Government is committed to restoring fiscal balance by 2006-07 as announced by
the Financial Secretary...”
The
Government therefore decided to reduce the CSSA and SSA standard rates of
payment:
“For fiscal
reasons and to ensure that we could continue to meet increase in demand, it is
therefore proposed that the CSSA and SSA rates should be adjusted downward;
that the over-adjustments in standard rates for able-bodied recipients under
the CSSA Scheme, and those of the non-means tested [Disability Allowance] under
the SSA Scheme should be recouped in one go through an 11.1% reduction from
June 2003 .... and for non-able-bodied CSSA recipients, namely the elderly, the
disabled and those medically certified to be in ill health, the 11.1% reduction
the standard rates will be effected in two phases, first by 6% from October
2003, followed by the second phase adjustment from October 2004.”
Again, in my
view, the rational connection between the sustainability objective and those
across-the-board reductions of the standard rates is plain to see.
J.3 The seven-year residence requirement
The
Government’s case in support of the seven-year requirement based on rising cost
is unfocussed and sparse. Mr Cheung
points to rising public expenditure on social welfare generally (reaching $32.8
billion in 2006-07), with social security taking up the largest share (73%). He indicates how overall spending on CSSA
has increased over the past decade:
“In
1993-1994, expenditure for CSSA amounted to $2.4 billion. The upward trend in CSSA expenditure levelled
off slightly between 1999 to 2001 at around $13.6 billion, and began to rise
again in 2001-2002. In 2003-2004 Draft
Estimates of Expenditure, the Administration was seeking a provision of $17
billion for CSSA to meet anticipated increase in demand. This is $780 million over the revised
provision of $16.3 billion on 2002-2003.”
He refers to new arrivals taking up CSSA
benefits, stating:
“Between
March 1999 and June 2002, it was estimated that new arrivals on CSSA benefits
rose from 14.3% to 16.6% of all new arrivals.”
He then
points out how expenditure on new arrivals has increased:
“The
estimated CSSA expenditure on new arrivals increased from $1,467 million (or
10.8% of total CSSA expenditure) in 1999-2000 to $1,728 million (or 12% of
total CSSA expenditure) in 2001-2002.”
Those
arguments are quite inadequate. It is
clear that spending on social welfare in general, and on CSSA in particular,
has risen markedly over the past decade.
But that says nothing to justify the impugned restriction relating to
new arrivals. In March 2003, the
Director reported that only 18% of new arrivals were on CSSA. And on the figures derived from the
evidence, new arrivals have generally
made up 12% to 15% of the total number of CSSA recipients:
Year Total of CSSA recipients New arrival CSSA recipients
98/99 382,454 45,945
(12%)
Mar 2000 370,231 45,477
(12.3%)
Mar 2001 367,470 50,146
(13.6%)
Mar 2002 410,998 60,982
(14.8%)
Dec 2002 466,868 69,345
(14.9%)
As we have
seen, the December 1998 Report of the Inter-Departmental Steering Group
addressed the problem of rapidly increasing costs without anywhere suggesting
that CSSA claims by new arrivals caused any particular problem or required any
measures to be taken. The overall
increase in spending may obviously be due to a whole range of factors. Thus, the 11.1% across-the-board reduction of
standard rates implemented in 2003 and 2004 was a response to an unacceptable
increase in expenditure attributable to upward adjustments subsequently thought
to have been excessive.
Nor is it
helpful for the Government simply to point to the increase in CSSA expenditure
in relation to all new arrivals. Without
evidence as to the savings which the seven-year restriction has achieved by
excluding the segment of new arrivals actually affected, it is very difficult
to evaluate its rational connection (if any) with the avowed objective of
ensuring sustainability of the social security system.
As emphasised
above, the precise terms of the
seven-year residence requirement must be kept in mind. By implementing the new rule, no savings are
achieved in relation to new arrivals under 18 years of age; new arrivals
already Hong Kong residents on 1 January 2004; and new arrivals who successfully
obtained a waiver of the residence requirement.
The
importance of those limits can be illustrated by considering the position in
2001-2002. In that year, the cost of
CSSA was $14.4 billion for all recipients.
The cost of CSSA paid to all new arrivals was 12% of the overall amount,
namely, $1.7 billion. If the seven-year
requirement had then been in place, $964 million would have been paid in any
event to those under the age of 18.
As to the
remaining $764 million, those who were already Hong Kong residents in that year
would also have received CSSA despite the new rule, and savings would have
shrunk further when discretionary waivers were taken into consideration. One would therefore have been left with
savings in respect of new arrivals affected by the seven-year rule which
represent a very small fraction indeed of the $14.4 billion overall expenditure
on CSSA for that year. It is true that
in subsequent years, the number of recipients who have not resided here for
seven years would progressively diminish.
It nevertheless remains the case that the actual savings would be
proportionately reduced by payments made to residents in that class for each
year over the entire seven-year period.
As pointed
out above, the legitimate aim espoused is not merely saving whatever money
might be saved, but preserving the system’s sustainability. The relatively insignificant level of savings
achievable by implementing the seven-year rule severely undermines the
suggestion that the restriction was genuinely intended to be, or functioned as,
a measure rationally designed to safeguard the sustainability of the social
security system.
In fact, the
Government has acknowledged the immateriality of the savings achievable by the
seven-year requirement. In its
information paper dated 2 January 2004, the day after the new rule took effect,
the Government informed the Welfare Panel’s Subcommittee that “Of the amount
paid to the new arrivals in 2002-03, $963 million were made to those aged 18 or
above and $1,068 [million] to those aged below 18.” Revealingly, the Paper went on to state:
“The new
residence requirements for CSSA are, however, not driven by the need to reduce
CSSA expenditure on new arrivals, but by the need to adopt ‘the principle of
seven-year residence requirement’ for providing social benefits heavily
subsidized by public funds, as recommended by the Task Force on Population
Policy, to ensure a rational basis on which our public resources are
allocated. The Government remains
committed to providing an effective and sustainable safety net for the
financially vulnerable.” (Italics supplied)
K. Other justifications put forward by the
Government
The reference
to the so-called “principle of seven-year residence requirement for providing
social benefits heavily subsidized by public” quoted above recalls a point made
in the Task Force Report as an
additional reason for the seven-year restriction, as follows:
“Chapter III
highlights the anomaly that exists in the eligibility criteria of various
subsidized benefits in terms of length of residence in Hong Kong. Among the
major benefits, a ‘seven-year’ residence rule is applied to public rental
housing applicants (except children under the age of 18). In the case of CSSA, a ‘one-year’ residence
rule is applied. No such rule is implemented for users of public health and
hospital services; they are not even subject to means test.”
The Task
Force Report went on to state:
“After
careful consideration, the Task Force considers that there is a strong case for
removing the anomaly that exists in the eligibility criteria for major
subsidized benefits, and for applying a uniform seven-year residence rule for
providing all heavily subsidized social services including CSSA and public
healthcare benefits. Eligibility based on a seven-year residence requirement
reflects the contribution a resident has made towards our economy over a
sustained period of time in Hong Kong. A seven-year residence is also normally
required for the grant of permanent resident status in Hong Kong, for which
additional rights are prescribed in the laws of Hong Kong.”
These
suggestions of course have nothing to do
with promoting the financial sustainability of the social security system and
do not provide any support for the seven-year residence requirement as
rationally connected with the legitimate purpose proclaimed by the Government.
It is unclear
whether the Director advances such grounds as separate purposes supplying
independent legitimate aims capable of justifying the restriction of the
Article 36 right. If that is the
intention, such grounds are, in my view, so lacking in coherence that they
cannot properly serve as legitimate aims for the restriction. Alternatively, if they do serve as such
purposes, they are such insubstantial and socially insignificant aims that the
restriction of the Article 36 right is a wholly disproportionate measure to
achieve them, making it a measure that is manifestly without reasonable
foundation.
K.1 Uniformity of qualifying periods
The first of
the additional arguments mentioned above is the somewhat bizzare suggestion
that there is some intrinsic value in having uniform qualifying periods for
welfare benefits where such benefits are heavily subsidized by the state. Symmetry for the sake of symmetry is hardly a
legitimate aim. Waiting times for public
rental housing must obviously depend on the stock of public housing available
and a shortage may lead to the setting of long qualifying periods. Why should those qualifying periods be
relevant to setting the eligibility period for CSSA payments intended to meet
the immediate basic needs of indigent individuals and families?
It is also
hard to understand why the absence of any residential requirement for access to
public health and hospital services should be regarded as “an anomaly”. It would indeed be a dysfunctional public
health system if a person in need of urgent medical services were to be refused
medical assistance on the ground that he or she has not met some residential
qualification imposed simply to achieve “uniformity” with residential
qualifications adopted for wholly different purposes.
It is also
impossible to see how the seven-year qualifying period for permanent resident
status laid down by Article 24(2) of the Basic Law is relevant. That seven-year period is essentially a
qualifying period for taking part in the government of the HKSAR. One has to be a Hong Kong permanent resident
to vote and stand for election; to
become Chief Executive; to become a
member of the Executive or Legislative Councils; and so forth. It makes no sense to impose a like residence
requirement for CSSA applicants simply to achieve a seven-year symmetry.
K.2 Contribution towards our economy
Another
strand of these additional arguments involves the suggestion that:
“Eligibility
based on a seven-year residence requirement reflects the contribution a
resident has made towards our economy over a sustained period of time in Hong
Kong.”
This loses
sight of the persons whose eligibility is in issue and the circumstances in
which they find themselves. The evidence
is that in 2002, in the 22-59 age group, 95% of new arrival CSSA recipients
were women. This pattern has continued
so that new arrival recipients of CSSA are overwhelmingly likely to be women;
and likely to be Mainland spouses reunited with their families in Hong
Kong. They are likely to be looking
after children who have the right of abode, and are therefore likely to be
unable, or to have very limited capacity, to take up outside employment. In playing their role, they make a valuable
contribution to our society, helping rejuvenate our ageing population, helping
to integrate children with right of abode into our community and helping to
avoid the socially disruptive consequences of split families. They are persons who, on the Director’s own
means test, are unable to meet their basic needs. In such circumstances, it appears arbitrary
and manifestly unreasonable to exclude them from CSSA benefits for seven years
because of some notion that they should only receive such benefits in exchange
for seven years’ worth of contribution to our economy.
But even
where a Hong Kong resident, having arrived as holder of a OWP, is unable to
work and is simply indigent, the idea of requiring him or her to contribute to
our economy for seven years before being allowed to draw CSSA makes little
sense. The realistic view is that such
person will need to draw upon, rather than make contributions to, our economic
resources in the same way as an indigent permanent resident does. It is illusory to think that adoption of a
seven-year eligibility criterion is somehow going to turn such a person into a
net contributor to the economy.
The idea of
requiring seven years’ contribution to the economy as a condition of receiving
CSSA is in truth a rejection of the principle, accepted in Hong Kong since
1970, that social welfare is the responsibility of the Government to be met by
public funds. Government officials in
charge of social welfare have rightly rejected attempts to undermine that
principle.
This is
exemplified in two places in the December 1998 report of the Inter-Departmental
Steering Group. It will be recalled that
the Steering Group recommended the reduction of the standard rate for larger
households. It had also been suggested
that payment of standard rates to such households should be capped. The Steering Group’s response was:
“We do not
support this idea because by capping the benefits payable to larger households,
the basic needs of some family members would not be provided for at all. This is against the objective of the CSSA
Scheme.”
They also
referred to a suggestion that CSSA for able-bodied unemployed recipients should
be cut off or reduced after a time limit of say, six months, so as to encourage
them to find employment. The Steering
Group rejected that suggestion stating:
“...we do not
propose to terminate or reduce assistance for able-bodied unemployed recipients
after a time limit. A balance has to be
struck between ensuring incentives to work and the guarantee of basic
livelihood. If termination or reduction
of benefits was to be introduced and was seen as leading to undue hardship, it
would run the risk of undermining the fundamental function of our social security
system.”
Perhaps it is
because the seven-year residence requirement originated, not in a specialist
social welfare review, but as something of a side-wind deriving from a
long-term population policy study, that there has not been proper recognition
of the threat posed by the seven-year restriction to those fundamental social
welfare values – values which have received constitutional acknowledgement in
Article 36.
K.3 Fiscal deficit
Another point
made by the Government on a number of occasions in seeking to justify the
seven-year rule involves reference to the restriction being imposed a “against
the background of a serious fiscal deficit”:
“Against the
background of a serious fiscal deficit and the implication of demographic
trends and characteristics identified in the [Task Force] Report, the
Administration took the view that there was a strong case for applying a
uniform 7-year residence requirement for providing heavily subsidized social
services.”
It is
significant that the deficit is put no higher than a “background” feature. It is also significant that when Stock VP
referred to this, he spoke of “the fiscal deficit at the time of the
decision”. Judicial notice may be taken
of the following figures derived from the annual accounts published by the
Government:
Year
HK$ millions Net Surplus /Deficit Operating revenue Operating
expenses Expenditure on social security Exchange Fund surplus (deficit)
2002-2003 (43,384) 151,244 (210,727) (21,815) 31,488
2003-2004 10,979 (restated) 167,014 (212,188) (22,860) 65,738
2004-2005 19,434 192,369 (207,827) (23,247) 24,571
2005-2006 48,974 (restated) 231,156 (206,907) (23,444) 33,165
2006-2007 124,867 223,627 (208,318) (23,185) 65,887
2007-2008 179,343 265,269 (218,835) (24,130) 63,821
2008-2009 (133,103) 250,609 (251,775) (27,466) (146,429)
2009-2010 145,252 242,133 (251,376) (27,959) 116,309
2010-2011 96,724 274,637 (247,132) (25,928) 50,037
The figures
show that there was indeed a net deficit in the year ended 31 March 2003. However, the figures indicate that the seven-year
rule was not introduced to cut spending so as to rein in that deficit. They also show that such deficit was not a
persistent feature of Government finances.
The figures suggest that the key determinants of whether there would be
a net surplus or deficit were the level of operating revenue and the results of investments made by the
Exchange Fund. Operating expenses in general and spending on social security in
particular were relatively stable and rose at a comparatively modest rate in
the eight-year period after the deficit was incurred. Healthy surpluses accrued in the five years
following the deficit year as operating revenues increased and the Exchange
Fund performed positively. There then
accrued a substantial deficit in 2008-2009, very largely due to poor Exchange
Fund results, but that was reversed by a greater net surplus in the following
year, followed by another hefty surplus in the subsequent year. The fiscal deficit in 2002-03 is therefore
indeed no more than a background feature in the discussion. It makes no contribution to any justification
of the seven-year rule.
L. Prior warning, charities and the Director’s
discretion
Finally, I
should mention three arguments that the Director has advanced in aid of the
submission that the seven-year residence requirement is a reasonable
measure. As I understand them, they are
put forward at the proportionality stage of the argument. In other words, the Director’s main
proposition is that the seven-year requirement is justified as a rational measure
aimed at ensuring the financial sustainability of Hong Kong’s social security
system and that it is a reasonable policy because any hardship flowing from the
restriction is catered for, or at least significantly mitigated, by the three
matters to which I now turn.
L.1 Prior warning against coming to Hong Kong
First, the
Director points out that the seven-year requirement has been widely publicised
on the Mainland, the intention being
that:
“... a
stricter residence requirement for CSSA would send a clear message to potential
migrants that they should plan carefully and ensure that they have sufficient
means to support themselves in Hong Kong.”
Making this
point to the Welfare Panel, the Director stated:
“..., it is
not unreasonable to expect the sponsoring persons in Hong Kong to support their
sponsored new arrivals, or the new arrivals who are economically active to
support themselves with their own means in Hong Kong. As the proposed measures
are to take effect from a future date, potential new arrivals will have an
opportunity to make an informed decision on whether they would move to Hong
Kong for settlement taking account of all relevant considerations.”
This is a
highly unattractive approach. It amounts
to telling potential immigrants who have been granted OWPs: “If you are poor,
stay home. You will be ineligible for
CSSA for seven years. So don’t come to
Hong Kong unless you can pay your own way or have someone who will support
you.” As was pointed out by a member of
the Welfare Panel, it has “the effect of deterring potential new arrivals to
settle in Hong Kong” and is “at variance with the policy of family
reunion.” 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.
I do not
think this approach qualifies as a reasonable way to mitigate the hardship
suffered by those caught by the seven-year residence requirement.
L.2 Reliance on charities
The
Government also makes the argument that, if denied CSSA, new arrivals are able
to seek help from charitable institutions.
Mention is made of charitable trust funds which assist people in family
crisis and temporary financial hardship, mainly in the form of one-off grants;
charities which provide foodstuffs and hot meals; and charities which provide
second-hand clothing, furniture and appliances, and so forth. It is self-evident that such charitable help
can only be of a temporary or emergency nature.
It may supplement but cannot be a practical substitute for CSSA.
More
importantly, the argument is in principle objectionable. It really amounts to the Government
abdicating its constitutional responsibility for social welfare to private
charities and trying to make a virtue of the existence of such charities in the
proportionality analysis. The Hong Kong
residents concerned find themselves destitute and eligible for short-term or
emergency help from charities because they have been excluded from CSSA as a
result of the Government’s adoption of the seven-year requirement. It is exceedingly unattractive for the
Government then to shrug its shoulders and say: “Well, you can always approach
local charities as a supplicant for their goodwill”.
The primary
responsibility of the Government for social security and the subsidiary role of
voluntary agencies have been recognized since at least 1970 when, in a
Memorandum for the Executive Council,
the Government stated:
“It is highly
desirable, both at present and for future planning, that Government should be
responsible for public assistance, and that there should be a clear distinction
between the responsibilities of voluntary agencies in this and other social
welfare fields.”
I am unable
to regard possible reliance on charities as a reasonable proportionality
argument to be weighed in support of the impugned restriction.
L.3 The Director’s discretion
Thirdly, the
Director places heavy reliance on the existence of a discretion to waive the
seven-year requirement as softening the impact of any hardship that may be
caused by the restriction. Thus, Mr
Cheung states:
“... members
of the [Welfare Panel] were informed that DSW would continue to exercise his
discretion to waive the residence requirement in cases of genuine hardship, if
necessary, thus making CSSA always available to the financially vulnerable in
the absence of other options.”
The evidence
shows, however, that it is clearly not the case that CSSA is “always available
to the financially vulnerable”. It is
important to note the qualifying words “in the absence of other options”. In fact, the Government’s stance has been to
treat the discretion as available only in exceptional cases. It has been quick to deem an applicant to
have “other options”.
The
exceptional nature of the discretion was envisaged by the Task Force from the
outset:
“For
exceptional cases, the Director of Social Welfare, of course, will have
discretionary power to grant CSSA on compassionate grounds waiving the
residence rule.”
And when, on
3 June 2003, the Chief Executive in Council made the Order that the seven-year
requirement be implemented with effect from the following January, the fourth
paragraph of the Order stated:
“In
exceptional circumstances, assistance may be granted at the discretion of the
Director of Social Welfare (DSW) to a person who does not meet the residence
requirement.”
The Director
has laid down guidelines for the
exercise of the discretion in the following terms:
In general,
financial hardship alone does not merit exceptional treatment, especially in
the case of able-bodied adults.
The [relevant
officer] can exercise discretion to exempt a Hong Kong resident from the
[seven-year] rule if the applicant can satisfy all [emphasis supplied] the
following criteria:
having no or
insufficient income to meet his/the family’s basic needs;
having no
relative or friend to turn to for assistance;
no other
forms of assistance being available to him/his family;
having
suffered a substantial and unexpected change in circumstances beyond his/her
family’s control;
having
genuine difficulty in returning to his country of origin or the place where he
came from;
the total
resources available to him/his family, including any savings and other assets
held by him/his family and any CSSA payable to his family members, are not
sufficient to meet his/his family’s recognised needs under the CSSA Scheme for
two months.”
As paragraph
(a) makes clear, the discretion is only intended to operate in exceptional
cases and financial hardship alone generally does not qualify as “exceptional”
even if the applicant is destitute. He
or she must satisfy all six of the listed conditions. Two of those conditions stand out.
First, as we have seen, the Director has made
the argument in these proceedings that, if denied CSSA, new arrivals are able
to seek help from charitable institutions.
If that is the view generally taken by social welfare officers,
applicants for a waiver are likely to find condition (iii) – the possible
availability of other forms of assistance – an important obstacle in many
cases.
Secondly, condition
(v) – refusal of a waiver if the applicant is able to return to where he or she
came from – is important. Although the
discretion is held out as a measure mitigating hardship caused by the
seven-year residence requirement and relied on as demonstrating the
proportionality of that restriction, paragraph (v) places severe limits on the
discretion. It instructs social welfare
officers to tell the applicant: “Go back to where you came from,” unless the
applicant faces “genuine difficulty” going back.
I have
described as highly unattractive the
Director’s practice of warning potential immigrants who hold OWPs (other than
exempted new arrivals) to stay home and not to come to Hong Kong unless they
are able to support themselves, since it contradicts avowed policies of
promoting family unity for Mainland children with the right of abode; of
rejuvenating our ageing population, and so forth. Condition (v) operates in the same vein. It involves abdicating responsibility for
providing social welfare assistance to indigent new arrivals who have become
Hong Kong residents and who are present in Hong Kong, unable to meet their
basic needs, telling them that they should leave Hong Kong and go back to where
they came from. A discretion that is
subject to such a condition does little to establish the proportionality of the
seven-year restriction of the Article 36 right.
The available
statistics tend to confirm that the discretion plays only a small part in
dealing with new arrivals who apply for CSSA but have not met the residence
requirement. Only a small proportion
(ranging from 2.4% to 9%) of such applicants go on to apply for a discretionary
waiver. A very high proportion of those
applicants (from 62% to 78%) then withdraw their applications (one assumes on
being told that they do not meet the criteria), leaving a small number of live
applications, most of which are then approved.
The figures are as follows:
2004-05 2005-06 2006-07 2007-08
CSSA
applications received not meeting residence requirement 68,601 62,097 54,746 46,807
Applications
for waiver 1,665 (2.4%) 3,856 (6.2%) 4,925 (9%) 3,553 (8.5%)
Applications
for waiver withdrawn 1,299 (78%) 2,892 (75%) 3,480 (70%) 2,221
(62%)
Applications
approved 230 843 1,383 1,307
Applications
rejected 18 26 33 39
After the
death of her husband (who left her only $982.37) and having been made homeless,
Madam Kong survived by living in a shelter for street sleepers and receiving
some financial help in the form of one-off payments from certain
charities. She was willing to work and
had attended government training courses with a view to finding employment. She
had found sporadic casual jobs as a cleaner (at $175 per day) and as a
substitute security guard (at $200 per 12 hour shift). When she applied for a waiver, she explained
that her staying at the shelter was unsatisfactory because it did not open
until 5.30 pm, so that she had to sleep in a park if she had been on night
shift as a security guard. She submitted
that she needed CSSA to meet her housing needs “in order to have better rest
before she could find stable gainful employment”. She admitted owning a property on the
Mainland but explained that it was an illegal structure which was occupied by
her two sons who were themselves without means, and was not a property that she
could sell.
The Board
applied the guidelines in rejecting her application. It noted that financial hardship alone does
not merit exceptional treatment and found that the death of her husband did not
count as a “substantial and unexpected change in circumstances beyond her
control”, as she should have realised that she could not depend financially on
her late husband who was an aged CSSA recipient suffering from chronic disease. It noted that she had expressed confidence in
being able to find a job but concluded that after her husband’s death, as she
had no relatives or friends in Hong Kong, “it would be a better alternative for
Madam Kong to return to her native place”.
If the
disposal of Madam Kong’s application is anything to go by, the guidelines
result in applicants for a waiver facing a very high threshold indeed.
M. Summary and conclusions
I have
reached the conclusion that the seven-year residence requirement is an
unjustifiable contravention of the right to social welfare in accordance with
law, conferred by Article 36.
In seeking to
address basic, “safety net” needs pursuant to an accessible and predictable set
of administrative rules, the CSSA scheme clearly comes within the Article 36
concept of a “social welfare” scheme established “in accordance with law”. It receives Article 36 protection, and while
the Government has a wide margin of discretion, both in defining the conditions
and level of the benefit in the first place, and in making any changes pursuant
to policies developed in accordance with Article 145, such changes are subject
to constitutional review.
Restrictions
on rights protected by Article 36 must pursue a legitimate societal aim and
must be rationally connected with the achievement of that end, employing
measures that do not make excessive inroads into the protected right. If the restriction is not rationally
connected to the avowed legitimate purpose or if the inroads it makes into the
protected right are manifestly without reasonable foundation, the Court may
declare the measure unconstitutional.
In the
present case, the Government has claimed that the seven-year residence
requirement pursues the legitimate purpose of curbing expenditure so as to
ensure the sustainability of the social security system. In my view that claim is not made out. The seven-year restriction conflicts with two
important social policies which are simultaneously embraced by the Government,
namely the OWP family reunion policy and the population policy aimed at
rejuvenating our ageing population.
There is no evidence as to the level of savings actually achieved and
achievable as a result of adopting the seven-year rule. On the contrary, everything points to the
actual savings being modest and of an order that cannot sensibly be described
as designed to safeguard the system’s sustainability. The Government has indeed admitted that the
new residence requirement is not driven by the need to reduce CSSA expenditure
on new arrivals.
Other matters
identified as objectives promoted by the seven-year rule include a search for
uniformity in qualifying periods for heavily subsidized benefits and a policy
of withholding benefits until the applicant has contributed to our economy for
seven years. These are purposes that
either lack legitimacy as societal aims or are wholly insubstantial in terms of
societal interests. If the restriction
has to rest on such purposes, it must be viewed as a restriction that is
manifestly without reasonable foundation.
Many of the Government’s
arguments seek to sidestep the issue and fail to confront the constitutional
issue altogether. They abdicate
responsibility for addressing the right conferred by Article 36 on Hong Kong
residents to social welfare in accordance with law. They suggest that indigent newly arrived
residents should look to charities rather than the social welfare system; that
they should not have come here in the first place without ensuring that they
could support themselves; or, if already here, that they should not receive any
discretionary assistance to meet their basic needs but should go home
instead. These arguments do not provide
any justification for the restriction.
I do not
doubt that the Government adopted policies genuinely with the legitimate aim of
curbing expenditure on CSSA with a view to ensuring the financial
sustainability of the social security system.
I readily accept that it did take rational measures towards that end by
reducing standard payments in 1999 in relation to larger households and
reducing standard payments across-the-board in 2003 and 2004. But in my view, the Director has not made
good the proposition that the seven-year residence requirement was rationally
connected to the aforesaid legitimate aim.
If there was any rational connection, the restriction was wholly
disproportionate and manifestly without reasonable foundation, given its
contradictory policy consequences and socially insubstantial benefits.
I accordingly
conclude that the appeal must be allowed and that the seven-year residence
requirement must be declared unconstitutional, restoring the pre-existing
residence requirement of one year. There
can, however, be no constitutional objection to the Government’s exempting new
arrivals under the age of 18 from any residence requirement and the Order which
I would make does not seek to re-impose a one-year residence requirement on new
arrivals in that age group. It merely
declares unconstitutional the policy expressed in the words “To be eligible for
CSSA, a person must have been a Hong Kong resident for at least seven years”
contained in the first sentence of the Order made by the Chief Executive in
Council on 3 June 2003 to take effect on 1 January 2004.
I would also
make an order nisi that the Director pay Madam Kong’s costs here and below and
direct that any submissions as to costs be made in writing and lodged with the
Registrar within 21 days from the date of this judgment and that any
submissions in reply be lodged within 21 days thereafter, in default of such
submissions, the order nisi to stand as an order absolute without further
order. I would order the appellant’s
costs to be taxed in accordance with the Legal Aid Regulations.
Mr Justice
Tang PJ :
I agree with
the judgment of Mr Justice Ribeiro PJ.
Mr Justice
Bokhary NPJ :
Judicial role
in regard to socio-economic rights
This case is
about social welfare. Policy matters
thereon are for the political branches of government. But there is in Hong Kong a constitutional
right to social welfare. And the responsibility
for enforcing constitutional rights, socio-economic ones no less than other
ones, rests with the courts. In
discharging this responsibility, it has to be recognized that courts are not
ideally equipped to undertake resource allocation. At the same time, the courts cannot decline
to intervene if the legislative (or administrative) scheme in question fails to
accord people the basic necessities to which they are constitutionally
entitled. The approach formed by those
two propositions is one at which I arrive on principle. It is, however, worth noting that it happens
to be the approach adopted by the Federal Supreme Court of Switzerland in V v.
Einwohrnergemeine X und Regierunsgrat des Kantons Bern BGE/ATF 1211 1367, 27 October 1995.
CSSA and the
residence requirement
The form of
social welfare concerned in the present case is Comprehensive Social Security
Assistance (commonly known as “CSSA”).
It is non-contributory and means-tested.
Payments thereunder are made in cash.
Its purpose is that of enabling recipients to meet basic needs. The scheme under which it is operated (which
it is convenient to call “the CSSA scheme”) is an administrative scheme, not a
statutory scheme.
There is a
residence requirement for the receipt of assistance under the CSSA scheme. This requirement applies to adults. It is that they must have been a resident of
Hong Kong for at least 7 years by the time of their application for CSSA.
Question
Is that
requirement constitutional or unconstitutional?
That is the question now before this Court. The learned judges in the courts below (being
Andrew Cheung J in the High Court and Stock VP and Lam and Barma JJ in the
Court of Appeal) have concluded that the requirement is constitutional. Their conclusion is disputed by the appellant
Madam Kong Yunming for whom Professor Johannes Chan SC and Mr Hectar Pun
appear. It is supported by the
respondent the Director of Social Welfare for whom Lord Pannick QC and Mr
Abraham Chan appear. Such being the
legal representation, the rival submissions prepared and presented have of
course been of the highest quality.
Facts
Shortly
stated, the facts are these. Madam Kong
was born in the Mainland in 1949. In
2003 she married a Hong Kong permanent resident. He had been a CSSA recipient since 1985. In November 2005 she was granted a one-way
permit to come to Hong Kong in order to settle here. On 21 December 2005 she arrived in Hong Kong
for that purpose. Tragically, her
husband, who had been in ill-health, died on the following day. She tried to have herself registered as the
new tenant of the public housing unit which had been allocated to him. But that was turned down. The Housing Authority repossessed the unit. She became homeless, and was admitted to a
street sleeper shelter. All that she
received from her late husband’s estate was a sum of $982.37. She lived on charity.
On 20 March
2006 she applied for CSSA. Her
application was turned down on the sole ground that she did not meet the
residence requirement, the Director of Social Welfare refusing to exercise his
discretion to waive that requirement in her case. Her appeal to the Social Security Appeal
Board against this refusal was launched in June 2006, heard in October that
year and dismissed in the following month.
In 2008 she
commenced the judicial review proceedings by which she challenged the
constitutionality of the 7-year residence requirement. That is the challenge which, having failed in
the courts below, has now reached this Court.
The question of law on which the Appeal Committee granted Madam Kong
leave to appeal to this Court is framed by reference to equality as well as the
right to social welfare.
Cases like
this one seem to be seen by some people as contests between long-term locals
and Mainland arrivals. But they are
not. Nor are they to be seen as contests
between the “haves” and the “have-nots” in our society. Cases like this one are about – and only
about – what an independent and impartial judiciary will, after receiving and
weighing full and rational argument on both sides of the question, adjudge to
be the true constitutional position.
That, no more and no less, is what cases like this one are about.
Guarantees of
equality
Under our
constitutional arrangements, equality is guaranteed by art. 25 of our
constitution the Basic Law. This article
provides that “[a]ll Hong Kong residents shall be equal before the law”. (As art. 24 of the Basic Law provides, Hong
Kong residents consist of permanent residents and non-permanent residents:
permanent residents having the right of abode and being qualified to obtain permanent
identity cards which state their right of abode; and non-permanent residents
being qualified to obtain identity cards but having no right of abode).
A
constitutional guarantee of equality is also to be found in the Bill of
Rights. Taken word-for-word from art. 26
of the International Covenant on Civil and Political Rights (“the ICCPR”) and
entrenched by art. 39 of the Basic Law, art. 22 of the Bill of Rights provides
as follows:
“All persons
are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.”
It will be
noticed at once that those guarantees of equality are not confined to permanent
residents. Article 25 of the Basic Law
speaks of all residents, and art. 22 of the Bill of Rights speaks of all persons.
Right to
social welfare
Turning to
the right to social welfare, it, too, is not confined to permanent
residents. Article 36 of the Basic Law
confers this right on Hong Kong residents, not just Hong Kong permanent
residents, saying this:
“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.”
Development
and improvement
The
development and improvement of social welfare is an obligation placed on the
Government by art.145 of the Basic Law which reads:
“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.”
Economic
conditions and social needs
As can be
seen, the expression “in the light of economic conditions and social needs”
comes immediately after the reference to the development and improvement of the
previous welfare system. I readily
accept that economic and social conditions can justify slowing down or
temporarily halting such development and improvement. What about new restrictions on the
availability of social welfare? If the
new restrictions go to undoing development and improvement introduced after the
coming into effect of the Basic Law, then I think that a really serious
economic downturn might justify such restrictions. Can an economic downturn justify moving the
welfare systems backwards from where it had stood when the Basic Law came into
effect? I would not rule that out but
find it difficult to see how any economic downturn can justify such a course
unless it is so dire as to bring about a situation not contemplated by the
constitution. If art. 145 of the Basic
Law is less protective than that, it would of little practical use.
Residence
requirement made seven times more restrictive
The CSSA
scheme was introduced in 1973. From that
time until 1 January 2004, the residence requirement for the receipt of CSSA
was one year. The CSSA scheme with a
one-year residence requirement is part of the “previous welfare system” to
which art. 145 refers. That is easy to
see. The Basic Law was promulgated and
adopted on 4 April 1990 and came into effect upon the handover on 1 July
1997. So the CSSA system with a one-year
residence requirement was in place when the Basic Law was promulgated and
adopted and when it came into effect.
The one-year residence requirement stood until it was turned into a
seven times more restrictive requirement of 7 years’ residence with effect from
1 January 2004. That was done by an
order made by the then Chief Executive in Council on 3 June 2003 following a recommendation
put forward by the Task Force on Population Policy in its report of 26 February
2003.
Residents and
non-residents
Neither art.
36 nor art. 145 of the Basic law, each of which deals with the position of Hong
Kong residents, was engaged in the case of Fok Chun Wa v Hospital Authority
(2012) 15 HKCFAR 409. That case was
about the exclusion of non-resident women from receipt of subsidized obstetric
services at public hospitals in Hong Kong and about increases in the charges
payable by them for obstetric services at such hospitals. As can be seen from para. 90 of the judgment
in that case, what was upheld was the drawing of a line between residents and
non-residents. There was no question of
treating non-permanent residents as outside the protection of art. 36 or 145 of
the Basic Law.
A word should
be said about art. 41 of the Basic Law, which reads:
“Persons in
the Hong Kong Special Administrative Region other than Hong Kong residents
shall, in assistance with law, enjoy the rights and freedoms of Hong Kong
residents prescribed in this Chapter”.
That was not
treated by the Court in Fok Chun Wa’s case to mean that every right and freedom
prescribed in Chapter III of the Basic Law was enjoyed by non-residents. Article 41 of the Basic Law calls for
purposeful construction in the context of the Basic Law as a whole. Upon such a construction, it will be seen at
once that some Chapter III fundamentals, for example freedom from torture, must
by their very nature and in conformity with international human rights norms,
extend to all persons present in Hong Kong.
But that is not so in regard to the right to social welfare.
Unwarranted
retrogression
Even without
reference to the right to equality before the law, the requirement of 7 years’
residence for receipt of CSSA is unconstitutional. If necessary, I would be prepared so to hold
on the following basis. The introduction of a 7-year requirement to replace the
one-year requirement moved the previous social welfare system backwards. It
therefore runs counter to art.145 of the Basic Law which, as far as that system
is concerned, contemplates progression and leaves no room for retrogression
except in a situation so dire as to lie beyond the contemplation of the
constitution. And no such situation has
arisen. So the increase from one year’s
residence to 7 years’ residence amounts to unwarranted retrogression and is
therefore unconstitutional.
But I am
content to hold that increase unconstitutional on another basis, being the one
to which I now turn.
Unjustified
distinction
We are in
this case concerned with equality in regard to a socio-economic right. In Social Rights Jurisprudence: Emerging Trends in International and
Comparative Law (ed. Malcom Langford)
(2008) (Cambridge University Press) at the page immediately preceding the table
of contents, what Justice Albie Sachs of the South African Constitutional Court
said about socio-economic rights when speaking at the Southern Methodist University School of Law in 1999 is
quoted. He said:
“There is
growing acceptance all over the world that certain core fundamental values of a
universal character should penetrate and suffuse all governmental activity,
including the furnishing of the basic conditions for a dignified life for all.
I believe that
21st-century jurisprudence will focus increasingly on socio-economic rights.”
I
respectfully share that perception and that belief.
Professor
Chan was in the company of Hong Kong’s leading constitutional lawyer, Professor
Yash Ghai, when they said two decades ago (in The Hong Kong Bill of Rights: a
Comparative Approach (eds Johannes Chan and Yash Ghai) (1993) (Butterworths
Asia) at p.5) that “(i)n countries with an established tradition of
constitutionalism, the rule of law is acceptable because economic and social
rights are woven into the fabric of public law.” And their writings are in the company of, for
example, Robert Alexander: The Voice of the People (1997) (Weidenfeld &
Nicolson) where it is said at p.196 that “human rights…prevent the weakest
going to the wall” and John P Humphrey: Human Rights and the United Nations
(1984) (Transnational Publishers) where it is said at p.2 that “[h]uman rights
without social and economic rights have little meaning for most people”.
Socio-economic
rights are not alien to common law systems.
Common lawyers may be generally more familiar with civil and political
rights than with rights of a socio-economic nature. But as Professor Geraldine Van Bueren QC
demonstrates in “Socio-Economic Rights and a Bill of Rights – An Overlooked
British Tradition” [2013] Public Law 821, socio-economic rights, too, have
historical origins that can be traced back to medieval times in the land where
the common law came to life.
In
recommending a requirement of 7 years’ residence, the Task Force on Population
Policy said in para. 5.56 of its report of 26 February 2003 that:
“Eligibility
based on a seven-year residence requirement reflects the contribution a
resident has made towards our economy over a sustained period of time in Hong
Kong. A seven-year residence is also
normally required for the grant of permanent resident status in Hong Kong, for
which additional rights are prescribed in the laws of Hong Kong”.
That is
followed by a footnote which says that those additional rights include “the
right to vote and to stand for election under Article 26 of the Basic Law and
to become the principal officials of the HKSAR in accordance with Article 61”.
Departures
from equality have to be justified
Departures
from equality have to be justified. The
departure from equality brought about by the requirement of 7 years’ residence
cannot be justified. Its effect – and
its declared objective, too, it might be added – is essentially to draw a
distinction between permanent residents and non-permanent residents in regard
to the right to social welfare. This
distinction is drawn in the face of a constitutional guarantee which extends to
all residents without distinction. Even
treating art. 145 of the Basic Law as far less protective of disadvantaged
people than I consider it to be, by no standard of review, test or approach
that preserves rather than undermines constitutional guarantees can such a
distinction be justified.
Basic Needs
Nothing more
has to be said, but more could be said.
We are, after all, concerned with basic needs. On what basis do I say that the present case
concerns basic needs? I am prepared to
say so on the basis that a right to social welfare, if it is to have any
meaningful content, must encompass basic needs at the very least. But it is not necessary to proceed on that
basis if one prefers not do so, for the Government accepts that CSSA is there
to enable persons to meet their basic needs.
The requirement of 7 years’ residence would leave needy members of one
category of residents dependent on exercises of discretion or charity in order
to meet basic needs. Whatever else the
Government may be saying about Hong Kong’s resources, I do not understand the
Government to be going to the extreme of saying that those resources are in a
state that compels the imposition of a residence requirement of 7 years even
though that has the effect of excluding non-permanent residents from the right
to social welfare conferred by the constitution on all residents, permanent and
non-permanent alike.
As to the
Task Force on Population Policy’s reference to the right to become a principal
official, that right depends also, as one can see from art. 61 of the Basic
Law, on being a Chinese citizen with no right of abode in any foreign country. No one has suggested that it would be
constitutional to make that status a condition of receipt of social welfare in
Hong Kong.
ICESCR
Even though I
am of the view that Madam Kong should succeed without having to rely on the
International Covenant on Economic, Social and Cultural Rights (“the ICESCR”),
I propose to deal with this covenant, we having received full argument on it.
In 2003,
which is the year before the residence requirement for the receipt of CSSA was
raised from one year to 7 years, the Hong Kong Government submitted a report to
the United Nations’ Committee on Economic Social and Cultural Rights (“the
CESCR”) in which this was said:
“It is true
that there is no single law – corresponding to the Hong Kong Bill of Rights
Ordinance in relation to the ICCPR that incorporates the ICESCR into Hong
Kong’s domestic legal order. However,
ICESCR provisions are incorporated into our domestic law through several
Articles of the Basic Law (for example Articles 27, 36, 37 137, 144 and 149),
and through provisions in over 50 Ordinances.
Those laws were listed in Annex 3 to the initial report, and are updated
at Annex 2A of the present report. We
consider that specific measures of this kind more effectively protect Covenant
rights than would the mere re-iteration in domestic law of the Covenant
provisions themselves.”
The Hong Kong
Government said in Annex 2A of that report that art. 39 of the Basic Law is the
constitutional guarantee for art. 2 of the ICESCR and that arts 36 and 145 of
the Basic Law are the constitutional guarantees for art. 9 of the ICESCR.
Article 39 of
the Basic Law reads:
“The
provisions of the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, and
international labour conventions as applied to Hong Kong shall remain in force
and shall be implemented through the laws of the Hong Kong Special
Administrative Region.”
The rights and freedoms enjoyed by Hong
Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the
provisions for the preceding paragraph of this Article.”
It will be
observed that this article, too, speaks of residents and not only of permanent
residents.
Turning to
the two articles of the ICESCR which the Hong Kong Government told the CESCR
are constitutionally guaranteed in Hong Kong, art. 2 reads:
“Each State
Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and
technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of
legislative measures.”
And art. 9
reads:
“The States
Parties to the present Covenant recognize the right of everyone to social
security, including social insurance.”
What the
CESCR said
Now let us
look at what the CESCR said about CSSA in general and the 7-year residence
requirement in particular. That was said
on 13 May 2005 in the CESCR’s concluding observations on economic, social and
cultural rights in the People’s Republic of China (including Hong Kong and
Macao) for which the reference is UN Doc E/C. 12/1/Add.107, §84. And this is what was said:
“The
Committee is seriously concerned that under the existing social security
system, and in particular under the Comprehensive Social Security Assistance
(CSSA), the levels of benefit are not sufficient to guarantee a decent standard
of living and the many low-income persons, in particular older persons, are not
covered by the scheme. The Committee is
further concerned that new migrants are unable to apply for CSSA due to the
seven-year residence requirement.”
Coming from
no less a source than the CESCR, none of that is anything that an international
financial centre (as Hong Kong is recognized in art. 109 of the Basic Law to
be) can feel comfortable to read about itself.
However that may be, the sufficiency or otherwise of benefit levels is
not before the Court in this appeal. But
what the CESCR says about the 7-year residence requirement’s adverse effect on
new migrants is directly relevant in the present appeal, because it highlights
the fact that the requirement excludes for a long time a large class which the
relevant constitutional guarantees do not exclude at all.
Retrogressive
in regard to basic needs and deliberately so
Such
exclusion is retrogressive. What makes
it all the more serious is that it is retrogressive in regard to basic needs
and deliberately so. In this connection,
it is to be remembered that the CESCR had, on 14 December 1990, said this in
its General Comment No.3, the reference for which is UN Doc E/1991/23, §9:
“The
principal obligation of result reflected in article 2 (1) is to take steps
“with a view to achieving progressively the full realization of the rights
recognized” in the Covenant. The term
“progressive realization” is often used to describe the intent of this
phrase. The concept of progressive
realization constitutes a recognition of the fact that full realization of all
economic, social and cultural rights will generally not be able to be achieved
in a short period of time. In this sense
the obligation differs significantly from that contained in article 2 of the
International Covenant on Civil and Political Rights which embodies an
immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over
time, or in other words progressively, is foreseen under the Covenant should
not be misinterpreted as depriving the obligation of all meaningful
content. It is on the one hand a
necessary flexibility device, reflecting the realities of the real world and
the difficulties involved for any country in ensuring full realization of
economic, social and cultural rights. On
the other hand, the phrase must be read in the light of the overall objective,
indeed the raison d’être, of the Covenant which is to establish clear
obligations for States parties in respect of the full realization of the rights
in question. It thus imposes an
obligation to move as expeditiously and effectively as possible towards that
goal. Moreover, any deliberately
retrogressive measures in that regard would require the most careful
consideration and would need to be fully justified by reference to the totality
of the rights provided for in the Covenant and in the context of the full use
of the maximum available resources.”
Much the same
point is made in, for example, Sandra Liebenberg, “Needs, Rights and
Transformation: Adjudicating Social Rights” (2006) 17 Stellenbosch Law Review 5
and Aoife Nolan, Bruce Proter and Malcolm Langford, “The Justifiability of
Social and Economic Rights: an Updated Appraisal” CHRGJ Working Paper No. 15,
2007. In the “Right to Welfare” chapter
of Law of the Hong Kong Constitution (eds Johannes Chan and C L Lim) (2011)
(Sweet & Maxwell) – a book cited by Lord Pannick in the course of argument
(although not on this point) – Professor Karen Kong put it like this (at p.798,
para 25.040):
“As suggested
by Sandra Leibenberg in relation to South African court’s adjudication of
social rights, ‘claims involving a deprivation of basic needs should attract a
high level of judicial scrutiny’. Aoife
Nolan et al. also commented, ‘[i]n general, Government will be held to a
stricter test in relation to available resources when existing programs are cut
than they might be with regard to a simple failure to take positive steps to
create programs or enhance them.’ The
stricter test will include imposing a heavier burden on the Government to
justify potentially retrogressive measures, and the need to show that
alternative measures had been carefully considered.”
Discretion
In seeking to
justify the raising of the residence requirement from one year to 7 years, the
Government places some reliance on the Director of Social Welfare’s discretion
to waive the residence requirement. A
discretion to waive is also a discretion not to waive. It is not suggested that the discretion would
invariably, or even generally, be exercised in favour of any person who, absent
a waiver, would be driven to seeking charity in order to meet her or his basic
needs.
There is in
any event, an inherent and fundamental weakness in the Government’s
“discretion” argument. As Lord Shaw of
Dunfermline said in Scott v. Scott [1913] AC 417 at p 477, to remit the
maintenance of a constitutional right to the region of discretion is to shift
the foundations “from the rock to the sand”.
Other benefits
Then the
Government places some reliance such other welfare benefits as a needy person
who is excluded from the CSSA scheme for want of 7 years’ residence, and who
fails to obtain a discretionary waiver, might be able to obtain. But since CSSA is designed to meet basic
needs, what can such other benefits really do, even if obtained, in the absence
of CSSA?
Charity
And then the
Government places some reliance on such charity as such a person may be able to
obtain. As to that sort of argument,
there is the decision of the South African Constitutional Court in the case of
Khosa v. Minister of Social Development 2004 (6) 505. At para. 80 Mokgoro J spoke of the likely
impact on a group of persons excluded from the constitutional right to social
security. He said that such exclusion
“is likely to have a severe impact on the dignity of the persons concerned,
who, unable to sustain themselves, have to turn to others to enable them to
meet the necessities of life and are thus cast in the role of supplicants”. That reflects the classic view. In the concluding section of the chapter on
“Rights, Freedoms and Social Policies” of his book Hong Kong’s New
Constitutional Order, 2nd ed (1997) (Hong Kong University Press), Professor
Yash Ghai quotes (at p.454) Alexis de Tocqueville’s statement that:
“There is
nothing which, generally speaking, elevates and sustains the human spirit more
than the idea of rights. There is
something great and virile in the idea of rights which removes from any request
its suppliant character, and places the one who claims it on the same level as
the one who grants it.”
Not
proportionate
A decrease in
expenditure on the CSSA scheme is a lawful objective. But just because it is legitimate to do
something, it does not mean that whatever is done will be legitimate. The raising of the residence requirement from
one-year to 7 years, putting the burden of that increase on immigrants so as in
effect to exclude non-permanent residents from the right to social welfare
conferred by the constitution on all residents without distinction has not been
shown to be a proportionate means by which to obtain that objective.
Conclusion
The one-year
residence requirement was part of the previous system on the basis of which
art. 145 of the Basic Law required the Government to formulate its policies for
the development and improvement of social welfare in the light of economic
conditions and social needs. We have not
been asked to hold that the residence requirement of one year had also been
unconstitutional, and I see no reason to do so.
The raising of the residential requirement from one year to 7 years,
however, is, in my judgment, unconstitutional for the reasons which I have
given. I would allow this appeal to
declare that rise unconstitutional.
As to costs,
I would order legal taxation of Madam Kong’s own costs. I would make an order nisi awarding her costs
here and in the courts below, such order to become absolute 21 days after the
handing down of judgment in this appeal unless an application has been made to
vary that order. And I would direct that in the event of such an application,
costs he dealt with on written submissions lodged according to a time-table for
which the parties, if not agreed thereon, should seek procedural directions
from the Registrar.
I end by
thanking both legal teams for the excellent arguments prepared and presented.
Lord Phillips
of Worth Matravers NPJ :
I agree with
the judgment of Mr Justice Ribeiro PJ.
Chief Justice
Ma :
By a
unanimous decision, this appeal is allowed.
The Court also makes the declaration referred to in paragraph 144 above
and makes the orders as to costs set out in paragraph 145 above.
(Geoffrey Ma) (RAV Ribeiro) (Robert
Tang)
Chief Justice Permanent Judge Permanent Judge
(Kemal
Bokhary) (Lord Phillips of Worth
Matravers)
Non-Permanent Judge Non-Permanent Judge
Mr Johannes
Chan SC and Mr Hectar Pun instructed by Tang, Wong & Chow and assigned by
the Legal Aid Department, for the Appellant
Lord Pannick
QC and Mr Abraham Chan instructed by the Department of Justice, for the
Respondent
上訴庭認同原訟庭法官的觀點,即規定申領綜援的人士在之前一年內不得離港超過 56天,是違憲和違法。
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