Public Welfare and The Judicial Over-Enforcement of Socio-Economic Rights in Hong Kong

Abstract

This comment argues that the Court of Final Appeal (CFA) in Kong Yunming has erred insofar as it applied the proportionality analysis vis-à-vis any restriction placed on the Art 36 right to social welfare. Even if the CFA was right to apply the proportionality analysis, it is argued that there is a rational connection between the 7-year residence requirement and the Government’s aim of ensuring the sustainability of the welfare system by addressing the problems raised by the following issues: (a) immigration from the Mainland under the One-Way Permit scheme; (b) Hong Kong’s ageing population; and (c) the rise in Comprehensive Social Security Assistance Scheme expenditure. Finally, even if the impugned 7-year residence requirement was unconstitutional, the CFA should have issued a temporary suspension order, rather than restore the 1-year residence requirement.