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Stuart Lau

JULIE CHU

The chances of the undocumented daughter of insurance executive Nick Cousins being able to claim permanent residency hang in the balance, even though she has spent all her life in the city.
The legal question was brought to light after her elder sister, also without birth documentation, jumped to her death from their luxury flat in Repulse Bay on Tuesday.
Legal academics maintained that the Immigration Department should exercise discretion.
The key legal issue, lawyers say, is whether the father is currently a permanent resident.
Under the Basic Law, a child born in Hong Kong enjoys right of abode if one of the non-Chinese parents is a permanent resident before the child reaches 21 years of age.
The 14-year-old younger daughter was born in 2000, police sources have told the South China Morning Post.
It takes seven years for someone to become a permanent resident in the city. If he or she has not yet applied for permanent residency, that person would have to prove that he or she has ordinarily resided in Hong Kong for a continuous period of at least seven years and has taken Hong Kong as the place of permanent residence.
An Immigration Department officer, who declined to be named, said there had been no news yet of the younger daughter applying for a birth certificate or permanent residency.
The officer added that the department was following up on the case but it was up to the family to take the initiative to make an application for the daughter.
A case dealt with by the top court last year may be relevant.
In that case, Joseph Gutierrez, a teenager who was born to a Filipino who was working as a maid in Hong Kong, applied unsuccessfully for the right of abode in Hong Kong.
The Court of Final Appeal ruled that if a person under 21 could not obtain right of abode through a parent, he or she could only qualify for the status if that person met statutory requirements. The authorities needed to assess the child's position in a holistic way, it ruled.
As most children would be living with the support of their parents or guardian, Immigration Department officers would consider if there was evidence of conduct or arrangements made on his or her behalf by the parents, guardian or even the child, showing that he or she had taken Hong Kong as his or her place of permanent residence.
Eric Cheung Tat-ming, a principal law lecturer at the University of Hong Kong, said there were "almost no grounds" not to allow Cousins' daughter the right to live in the city, given the highly exceptional circumstances.
"If it was decided that she could not live here there would definitely be a strong ground for a judicial review," Cheung said, adding that humanitarian concerns came into play.
In a separate case, the High Court ruled last year that the Director of Immigration could allow a person to stay if "there exists strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration".
Simon Young Ngai-man, a law professor at the University of Hong Kong, said: "I hope serious consideration is given to the exercise of this discretion."
As to the nationality of the girl, human rights lawyer Mark Daly said it was a matter of parental choice.
Cousins is from Britain while his unmarried partner, Herminia Garcia, is from the Philippines.
A British Home Office guideline states that a child born abroad to a British parent will acquire citizenship either automatically or by application, depending on how the parent obtained citizenship.
Garcia stands accused of overstaying in Hong Kong and ill-treating or neglecting a child.
 


Hong Kong residence status of Nick Cousins' daughter hangs in the balance after Repulse Bay suicide

Nick Cousins and his partner Herminia Garcia after she reported to Aberdeen police station yesterday. Photo: Dickson Lee

News

Hong Kong

Education

Legal academics call for discretion over right of abode for suicide victim's undocumented sister


The chances of the undocumented daughter of insurance executive Nick Cousins being able to claim permanent residency hang in the balance, even though she has spent all her life in the city.
