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Filipina files legal challenge to live-in policy for FDWs

05 October 2017

By Vir B. Lumicao

Filipina domestic workers line up to process work contracts 
at the Philippine Overseas Labor Office
A Filipina has launched a landmark 
challenge in the High Court against the Hong Kong government’s policy prohibiting her and her fellow migrant domestic workers from living outside their employers’ homes.

The hearing of Nancy Lubiano’s application for a judicial review of the policy that was imposed by Hong Kong Immigration in 2003 began on Oct. 3 before Judge Stephen Chow.

Lubiano, who arrived in Hong Kong in 2011, claimed she suffered abuse at the hands of her former employer due to the live-in policy.

A Filipina maid was made to sleep
in this tny space in the kitchen 
Named respondent in the application was the Director of Immigration. Lubiano is represented in the case by prominent human rights solicitors, Daly, Ho and Associates.

The challenged is premised on the following grounds:
1)      That the Director of Immigration imposed the live-in requirement ultra vires, or outside the law. He has no power to impose a limit to the conditions of stay, or a precondition to issuing a foreign domestic worker’s visa, under section 11 of the Immigration Ordinance.
2)      That the requirement for live-in accommodation is unconstitutional as it violates the prohibition against servitude in the Hong Kong Bill of Rights, and the international rule against forced labor. It also violates a worker’s rights under the Basic Law to adequate rest and holidays, and heightens the risk of breaching the fundamental human, labor and economic rights of helpers.
3)      The live-in requirement is discriminatory as it goes against the “protected characteristic of the applicant as a ‘migrant worker’.”.
4)      The live-in requirement must be scrutinized under common law because its mandatory aspect allowing only an “unadvertised and highly limited class of exceptions”, is irrational.

Lubiano’s counsel, barrister Paul Shieh SC, spent more than a day arguing against what he called an unconstitutional policy that is not in the Basic Law of Hong Kong.

Shieh said his client – along with other foreign domestic helpers – believe the live-in rule infringes on her right to privacy because she is forced to endure unsuitable, inhumane or degrading accommodation.

The live-in rule also places FDHs in a vulnerable position where they are unable to establish social contacts through which they could seek aid or advice.

As well, their isolation in the homes of their employers makes them vulnerable to abuse, maltreatment or exploitation by employers and puts them at risk of doing forced labor, the lawyer said.  

“The government should have considered the deleterious effect of the live-in rule on the foreign domestic helpers,” Sheih said, as he rued that Hong Kong has no law penalizing those who engage in forced labor.

Arguing on the second day of the hearing, barristers Benjamin Yu, SC and Abraham Chan, SC took turns rebutting the arguments of Shieh. They said the live-in rule is based on law, and is actually intended to protect FDHs while serving their employers.

Yu also said that while there had been cases of assaults of FDHs by their employers,  there was no evidence that they were caused directly by the policy.

As a matter of fact, he said there were more incidents of helpers getting hurt outside their place of work than those who were assaulted by their employers.

The lawyer also said that despite the live-in policy, a big number of foreign helpers - 108,199 of them - renewed their work contracts in 2016.

Due to the protracted arguments, the hearing originally set for two days will continue on Monday, Oct. 10.
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