-49expressed 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”.
136.
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.
137.
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.
138.
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.
139.
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.
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