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Immigration, Labour can’t waive live-in rule, says High Court

11 February 2021

By Vir B. Lumicao 

Fernandez, like the FDH in this photo, moved to PathFinder's shelter after giving birth

A Filipina domestic helper and her 20-month-old baby’s quest for a judicial review of the Labour Commissioner and Immigration Director’s refusal to grant them a “waiver” of the live-in requirement was rejected by the High Court today, Feb 10.

Judge Anderson Chow ruled that applicants Yvette D. Fernandez and her daughter, Eloisa Valerie, were wrong in saying that the Commissioner and/or the Director have power to grant a waiver of the policy that covers FDHs.

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Fernandez, who was born in Hong Kong in 1994  but was brought to the Philippines a year later, came back here on Aug 5, 2018 to work as a FDH for Law Wai-yin.

The Filipina discovered she was pregnant in December 2018 and informed Law in May 2019.  She told her employer that she planned to give birth in Hong Kong, then take her baby to the Philippines when she started her maternity leave, before returning to continue working for Law.

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After giving birth on Jun 10, 2018, Fernandez was told by Law that she and her husband wanted her to spend her maternity leave in their house minus the baby, citing the live-in clause in their contract.

Instead of complying, Fernandez decided to stay with her baby in a shelter run by PathFinders, a Hong Kong charity helping migrant mothers and babies. On Mar 16 last year, the mother and her child departed Hong Kong.


In the meantime, she sought help from the Immigration director and the Labour Commissioner to seek a waiver of the live-in clause in her contract so she could live with her baby outside Law’s home, but both refused.

On Oct. 29 last year, Fernandez and her baby applied for leave for judicial review against the decision of both the Immigration Director and the Labour Commissioner not to provide a waiver of the live-in policy in her case.

The High Court says the live-in policy rule is part of an agreement between the helper & her employer

In rejecting the application, Chow said the live-in policy is a contractual undertaking between the helper and the employer, which the Immigration Director has no power to vary.

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“Although the Director has power not to enforce such undertaking, he has no power to waive the live-in requirement in so far as it operates as a contractual obligation on the foreign domestic helper vis-à-vis her employer,” Chow said.

The judge also said that while the Labour Commissioner may consent to a variation of Clause 3 of the Standard Employment Contract which provides for the live-in rule, such consent cannot free the helper from the requirement without the employer’s agreement.

Judge Chow said the application for leave for judicial review is based on a false premise, and the intended application for judicial review has no realistic prospect of success. 

However, he stressed that his dismissal of the application did not signify the court’s approval of the government’s live-in policy.


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