Hong Kong Case Law: Decisions & Judgments

Topic

Right to work

Legal area

Court

28 Oct 2016

LEUNG SZE HO ALBERT v. THE BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION

Citation

LEUNG SZE HO ALBERT v. THE BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION
Court

Court of Appeal
Case number

CACV246/2015

The Court of Appeal held that Basic Law Article 33 does not confer a general right to work but only protects against conscription into particular occupations; GA v Director of Immigration (CFA) is binding and disposes of the threshold engagement of BL33, therefore Paragraph 23 does not engage BL33, proportionality is not engaged, and the appeal is allowed with the High Court order set aside.
18 Feb 2014

JA v. DIRECTOR OF IMMIGRATION

Citation

JA v. DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV10/2013

Section 11 of the HKBORO, read in context with Basic Law article 39 and the UK reservations, excludes the relied-on Bill of Rights and ICESCR rights in respect of immigration legislation governing entry, stay and departure; Article 33 Basic Law does not create a general right to work; Article 6 ICESCR has not been incorporated to confer an unrestricted right to work; however Article 3 BOR is absolute — if an applicant demonstrates a substantial and imminent risk of inhuman or degrading treatment from prohibition to work the DOI must permit work — otherwise DOI retains a broad discretionary po…
18 Feb 2014

FI v. DIRECTOR OF IMMIGRATION

Citation

FI v. DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV9/2013

The Court unanimously dismissed the appeals: s.11 HKBORO prevents the applicants from relying on Article 14 BOR in this immigration context; Article 6 ICESCR has not been incorporated into domestic law in a manner conferring the general right to work relied on and is subject to the UK reservation; Article 33 Basic Law does not create a general right to work for non-residents; no common law right to work was established; however Article 3 BOR (no torture/IDT) remains absolute and where a substantial and imminent risk of IDT is demonstrated the DOI must exercise the immigration discretion to pe…
18 Feb 2014

PA v. DIRECTOR OF IMMIGRATION

Citation

PA v. DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV8/2013

Section 11 of the HKBORO precludes reliance on Article 14 BOR in respect of immigration legislation governing entry, stay and departure; Article 6 ICESCR has not been incorporated into domestic law in a way that affords Applicants the asserted general right to work and in any event is subject to the UK reservation permitting restrictions; Article 33 Basic Law guarantees freedom of choice of occupation not a general right to take up employment for non‑residents; no common law right to work was established; therefore no constitutional right to work arose and proportionality did not apply. Howev…
18 Feb 2014

GA v. DIRECTOR OF IMMIGRATION

Citation

GA v. DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV7/2013

HKBORO s.11, read in context with the UK reservations and Basic Law art.39, excludes reliance on BOR art.14 and ICESCR art.6 by persons who do not have the right to enter and remain in Hong Kong; Article 33 BL does not create a general right to work; no common law right to work was established; appeals dismissed. However BOR art.3 (no torture/IDT) remains non-derogable and where a substantial and imminent risk of IDT is shown the DOI must exercise his discretion to permit employment.
27 Nov 2012

JA v. DIRECTOR OF IMMIGRATION

Citation

JA v. DIRECTOR OF IMMIGRATION
Court

Court of Appeal
Case number

CACV48/2011

HKBORO s.11 applies to the appellants' circumstances and therefore precludes invocation of rights under the BOR/ICCPR to challenge a condition of stay barring employment; the UK reservation/notification to ICESCR6 operates as a reservation modifying the right to work so that non‑permanent residents subject to conditions of stay cannot rely on ICESCR6 to require permission to work; Basic Law art 33 does not guarantee a substantive right to be employed or to take up available employment and is not co‑extensive with ICESCR6; accordingly the appeals are dismissed.
27 Nov 2012

FI v. DIRECTOR OF IMMIGRATION

Citation

FI v. DIRECTOR OF IMMIGRATION
Court

Court of Appeal
Case number

CACV47/2011

HKBORO s.11 covers immigration legislation governing entry, stay and departure including conditions of stay related to employment so appellants cannot invoke BOR/ICCPR to challenge the employment restriction; the UK reservation/notification to ICESCR article 6 modifies the ICESCR6 right so it does not secure a domestic right to work for non-permanent residents in Hong Kong; Basic Law article 33 does not confer an unqualified right to take up available employment for persons without resident status; accordingly the appeals are dismissed.
27 Nov 2012

GA v. DIRECTOR OF IMMIGRATION

Citation

GA v. DIRECTOR OF IMMIGRATION
Court

Court of Appeal
Case number

CACV45/2011

The appeals are dismissed. The Court held that HKBORO s.11 must be given its ordinary meaning and covers immigration legislation governing entry, stay (including conditions as to duration and purpose) and departure for persons without the right to enter and remain; accordingly the appellants could not invoke rights under the HKBORO/BOR or ICCPR to challenge the Director's policy refusing permission to work. The UK reservation/notification to ICESCR6 modifies the ICESCR right to work so it does not operate to afford a right to work to non-permanent residents subject to conditions of stay. Basi…
27 Nov 2012

PA v. DIRECTOR OF IMMIGRATION

Citation

PA v. DIRECTOR OF IMMIGRATION
Court

Court of Appeal
Case number

CACV46/2011

HKBORO s.11 applies to immigration legislation governing entry, stay and departure and thus precludes reliance on BOR/ICCPR to challenge a condition of stay prohibiting employment for persons without right to enter or remain; the UK reservation to ICESCR6 modifies the right to work so it does not apply to non-permanent residents subject to conditions of stay; Basic Law 33 guarantees freedom of choice of occupation but not a right to be employed; accordingly the appeals are dismissed.
27 Nov 2012

MA v. DIRECTOR OF IMMIGRATION

Citation

MA v. DIRECTOR OF IMMIGRATION
Court

Court of Appeal
Case number

CACV44/2011

HKBORO s.11 applies to conditions of stay including employment restrictions so appellants cannot invoke BOR/ICCPR rights to challenge the prohibition on work; the UK reservation to ICESCR6 operates as a modification excluding non-permanent residents from the ICESCR6 right to work as applied to Hong Kong; Basic Law article 33 does not create a standalone positive right to take up employment; accordingly the appeals are dismissed.