Judge quashes domestic helper’s bid for change to ‘live-in’ rule in Hong Kong
Filipino helper had challenged rule, claiming director of immigration abused his power to introduce policy in 2003
A domestic helper on Wednesday lost Hong Kong’s first judicial review of the government requirement that she and 370,000 workers like her must live with their employers.
Nancy Almorin Lubiano, from the Philippines, had asked the High Court to declare the city’s mandatory 15-year-old live-in rule unconstitutional as her lawyers argued for the option to live elsewhere. But Mr Justice Anderson Chow Ka-ming sided with the director of immigration in dismissing all four grounds of challenge and ordered Lubiano to pay the government’s costs.
“It cannot seriously be argued that the imposition of the live-in requirement would directly constitute, or give rise to, a violation of the [foreign domestic helpers’] fundamental rights,” the judge wrote in a 62-page judgment. “If, after coming to work in Hong Kong, the foreign domestic helper finds it unacceptable, for any reason, to reside in his/her employer’s residence, it is well within his/her right or power to terminate the employment.”
Lubiano said through her lawyer Mark Daly that she had already received a number of negative comments on social media, many of which told her to leave the city if she did not like it.
Daly, who called his client courageous for fighting for her rights, said it was unfortunate that such comments were also present in the judgment, which he said seemed to have prioritised immigration control over fundamental rights. “The judge effectively said if she didn’t like it she could leave,” he said. “Outside of the law and in practical consideration, the judge has reinforced the stereotype that domestic helpers are second-class citizens.”
Helper claiming work led to schizophrenia challenges Hong Kong policy requiring maids live with employers
Foreign domestic helpers have long called for the relaxation of the rule introduced in April 2003. Many claim the arrangement heightens the risk of abuse seen in the shocking case of Erwiana Sulistyaningsih in 2014. But the government maintained that the requirement is an essential feature of the importation scheme designed and developed to meet the demand for live-in domestic service, and countered that lifting the rule could have serious repercussions for Hong Kong’s economy and society.
More importantly, any determination in Lubiano’s favour may reopen the debate on whether such workers may acquire the right of abode in the city, since the Court of Final Appeal previously ruled they could not acquire the right as their residence does not count as “ordinary residence”.
Given the potentially far-reaching implications, judge Chow noted the court had to “act cautiously” in deciding such matters.
He concluded that he could not see why it would be beyond the powers of the director to impose the live-in requirement on foreign domestic helpers when it was a “functional requirement” of their employment.
He further observed that a domestic helper working in the employer’s residence would “necessarily be exposed to a risk of ill-treatment by the employer” regardless of whether they live together.
“I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the foreign domestic helper is living in the employer’s residence,” the judge continued. “Where ill-treatment does occur, it seems to me that the real cause of the problem lies in the employer.”
Chow also agreed with the government that foreign domestic helpers permitted to live out could still be deprived of adequate rest time if the employer does not respect their need for rest.
But Professor Hans Ladegaard, an academic who has interviewed 470 foreign domestic helpers since 2008, noted that the judge did not seem to understand the workers’ difficult situation as they are often sole breadwinners or owe huge debts to employment agencies.
“If that’s what’s at stake, even if you’re abused, you stay because you don’t want to put your family at risk,” he said. “It’s a great risk for a domestic worker to terminate her contract.”
The government said it was “pleased that the judgment confirms the live-in requirement is lawful”.
Tri Tharyat, consul general of Indonesia in Hong Kong, said the consulate “fully respects the court’s judgment” and appealed to agencies and employers to respect all relevant laws and regulations that promote workers’ health. A large share of the city’s domestic helpers are Indonesian.
Support Group for Hong Kong Employers with Foreign Domestic Helpers convenor Joan Tsui Hiu-tung welcomed the judgment as she noted the live-in rule provides stable assistance for working parents who need someone to look after their children.
She also said she was not worried the judgment would affect the city’s ability to attract foreign domestic workers, as they would prefer the city’s rule of law, freedom and higher wages.
Erwiana, whose former employer Law Wan-tung was jailed for six years over seven months of abuse against the Indonesian, said she regretted the ruling.
“My own case and other cases of violence and poor working conditions are the impact of the coercive live-in [rule],” she said.
“There have been many studies that prove [the rule’s] impacts, such as long working hours, inhuman beds, inadequate food and the loss of our bargaining rights as workers. We cannot deny anything that the master may command.”