Foreign domestic workers in Hong Kong

End to live-in rule will not solve domestic helpers’ problems, government argues

Lawyer representing the director of immigration argues that removing the 2003 rule will have a direct impact on the Hong Kong workforce

PUBLISHED : Wednesday, 04 October, 2017, 10:20pm
UPDATED : Wednesday, 04 October, 2017, 11:24pm

Lifting the mandatory rule for all foreign domestic helpers to live with their employers will have an impact on Hong Kong’s local workforce, transport and housing, and leave employers with more bills to pay, the government told a court on Wednesday.

But lawyer Benjamin Yu SC, for the director of immigration, said that removing the requirement would still not address concerns of a heightened risk of abuse or unsatisfactory living environments purportedly faced by the 350,000 domestic helpers in the city.

“At the end of the day we are living in a community which is quite closely packed,” he told the High Court. “In a modern society such as Hong Kong ... it’s difficult to say in all circumstances that the live-in requirement has substantially increased the risk of breaching fundamental rights.”

The government was responding to a landmark judicial review mounted by Nancy Almorin Lubiano, from the Philippines, who has asked the court to change a 14-year-old rule to grant foreign domestic helpers the choice of living apart from their employers.

Her lawyers have argued that the director of immigration abused his power to introduce a policy that had no rational connection with its aim of protecting the local workforce, but heightened the risk of breaching the rights of foreign domestic helpers.

Yu countered: “If the policy were to be abolished ... it’s not difficult to imagine there would be a severe impact on the local labour market.”

Associated problems included the impact on transport and housing, an increase in medical insurance and employee compensation, as well as possible social problems, he said. Foreign domestic helpers would also need money to find accommodation, and there may be changes to their conditions of service.

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Yu said the rule was “plainly a multifaceted decision” introduced through wide and flexible discretionary powers, conferred by the Basic Law and the Immigration Ordinance, to achieve the primary aim of protecting the local workforce.

Given the rule was a lawful policy, Yu argued that Lubiano would have to show its implementation would result in an unacceptable increase in the risk of breaching workers’ fundamental rights or of forced labour, for the court to interfere.

Government data showed complaints lodged by foreign domestic helpers had dropped by 63 per cent from 2012 to 2016, while nearly half the 240,000 contracts signed last year were for renewal purposes.

Yu said foreign domestic helpers working overtime or living in shared spaces were not intrinsic features of the live-in rule. One must also consider the circumstances of Hong Kong, where rooms are crowded even for the employers. “If the ill is the inadequacy of living conditions,” he continued, “the correct remedy is to introduce another legislation to ensure the accommodation is roomy, comfortable and private.”

He argued there was a fundamental flaw in Lubiano’s case as her overall logic was “elusive”.

“If one is given a choice [to live out], does it mean he or she will not be subject to abuse?” Yu said. “If the complaint is someone living in domestic setting is vulnerable to abuse, the correct answer is there should be no live-in.”

The case continues before Mr Justice Anderson Chow Ka-ming on Monday.