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Court rejects Pinay DH’s challenge to ‘live-in’ rule

21 February 2018

The Court of First Instance quashed the legal challenge to
Hong Kong's live-in policy for foreign domestic helpers 

By The SUN Staff

The Court of First Instance has rejected a Filipina maid’s application for a judicial review ofHong Kong’s “live-in regulation”, saying the applicant has not sufficiently proved that the policy is illegal and breaches the rights of foreign domestic helpers.

Judge Anderson Chow said that the Immigration policy to let the maids live with their employers is a matter that FDHs helpers could accept or not, even before they come to Hong Kong.

“If, prior to coming to Hong Kong, he/she considers the Live-In Requirement to amount to an unacceptable invasion of his/her personal or private rights, he/she can of course choose to remain in  his/her home country, or work in some other countries which do not have such requirement,” said Judge Chow in his judgment.

Then, after coming to Hong Kong, the FDW finds the policy unacceptable, he or she can still terminate the employment contract by giving a month’s notice, said the judge.

The applicant, domestic helper Nancy A. Lubiano, sought a judicial review of the rule in 2016, saying it was unconstitutional and breached the rights of helpers.

On Sept. 13 last year, she sought to amend her notice for a judicial review and serve a second affidavit in support of her application, but both these were rejected by Judge Chow in his decision.

The judge also allowed a request by Lubiano’s lawyers that her personal details be not disclosed to the public during the hearing of her application.

The Filipina advanced four grounds to support her legal challenge: 1) the Immigration Director does not have legal authority to impose the live-in rule; 2) the requirement heightens the risk of a breach of fundamental rights and is, therefore, unconstitutional; 3) the policy is discriminatory against domestic helpers or migrant workers; and 4) the implementation of the policy without any general exception is irrational and unlawful.

Chow said that the live-in requirement is a matter of contract between the employer and FDH, and as between the employer/FDH and the Director, it is an “undertaking” given by the former as an eligibility criterion for the issuance of a FDH visa.

“The Applicant’s alternative argument is premised on the assumption that the Director cannot impose the Live-in Requirement as a condition of stay. I do not accept this contention,” said Chow.

He said the live-in requirement should be regarded as a “functional requirement” of the FDH’s employment. The migrant workers were allowed to come in to fill a vacuum left by local domestic workers who did not want to live with their employers.

He noted that the live-in requirement has always been part of the FDH importation scheme, but was only included as part of their employment contracts on April 1, 2003.

However, a general exception was made at that time for employers who obtained the Director of Immigration’s approval to let their FDHs live out prior to this date. These employers are still allowed this exemption, so long as they continue to employ helpers without a break of more than six months.

“Currently, there are approximately only 30 such employers being allowed to employ live-out FDHs,” said Judge Chow.

Regarding the issue of fundamental rights, the judge said the applicant failed to show that the policy has given rise to a significant or serious risk of violation of a fundamental right.

Paul Hsieh, SC, for the applicant, cited “servitude” and “forced or compulsory labor” as the potential violations, but Chow said these are not defined in the Hong Kong Bill of Rights.

On the ground that the policy is discriminatory, Chow said there is enough relevant difference between FDHs and imported workers admitted under the Supplementary Labor Scheme to justify the different treatment.

The judge said FDHs are admitted for the purpose of providing live-in domestic service, so they are expected to live with their employers, unlike other workers who are not admitted for such purpose.

“I do not consider the pursuit of societal interest in the importation of workers to provide live-in domestic service in Hong Kong can be said to result in an unacceptably harsh burden on FDHs,” the judge said, rejecting Lubiano’s discrimination ground.

Chow also brushed aside the argument that the live-in requirement heightens the risk of ill-treatment of FDHs by their employers.

“While the fact that the FDH is living in the employer’s residence would mean that there may be more opportunities for the employer to apply ill-treatment on FDH if the employer is minded to do so, I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the FDH is living in the employer’s residence,” said Chow.

He also dismissed the argument that the Director is being irrational or is wrong in not using his discretion in allowing for exceptions to the live-in requirement for FDHs.

Chow ordered Lubiano, who was on Legal Aid, to pay the costs of the application. Lubiano was represented by Paul Hsieh SC and Earl Deng, on instructions by Daly, Ho and Associates.

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