Hong Kong High Court throws out challenge to live-in policy for domestic workers

The rule, introduced in 2003, stipulates that helpers must live in the same residence as their employers, even during maternity leave

While it has been argued the arrangement heightens the possibility of abuse, the government maintains changing it would have serious repercussions for economy

Reading Time:4 minutes

Hong Kong’s live-in policy has long forced the city’s domestic workers to reside with their employers. Photo: Winson Wong

Published: 11:24am, 10 Feb 2021Updated: 7:20am, 27 Sep 2021

Hong Kong’s High Court has thrown out the second judicial challenge to the government’s controversial requirement for domestic workers to live with their employers, even during maternity leave.

Yvette Dingle Fernandez and her daughter, Eloisa Valerie Fernandez, had applied for judicial review of officials’ refusal in July 2019 to grant a waiver of the live-in requirement in her case, after her employer insisted she live in her workplace and apart from her newborn.

Their lawyers had accused the government of misinterpreting domestic helpers’ standard employment contracts, which stipulate that they must “work and reside in the employer’s residence”, arguing the city’s 370,000 helpers were entitled to the same labour protection as the local workforce.

The judicial challenge thrown out by the High Court on Wednesday was the second to target the requirement that domestic workers live with their employers. Photo: Warton Li

But Mr Justice Anderson Chow Ka-ming on Wednesday observed that the application was based on a “false premise” and a “fundamental misunderstanding” of the requirement, because neither the director of immigration nor commissioner of labour had any proper basis to grant the waiver sought once the true legal nature and effect of the live-in rule was understood.

The director, Chow explained, had no role to play in any proposed variations of the contract and was entitled to take enforcement action if there was a breach, even if the commissioner had consented to the helper and employer’s mutual agreement for her to live elsewhere.

The Court of First Instance judge further concluded that the commissioner was entitled to adopt a practical approach and decline to process Fernandez’s case, given that her employer – the other binding party to the contract – had not agreed to a variation of the live-in clause.