Appeals court upholds live-in rule for domestic workers

The High Court in Admiralty (FILE PHOTO)

The Court of Appeal dismissed a Filipina’s landmark challenge against the government requirement for Hong Kong’s 370,000 foreign domestic workers to live with their employers.

Three judges from the court rejected domestic worker Nancy Almorin Lubiano’s appeal in a 51-page ruling on Monday, after her legal challenge against the mandatory live-in rule was junked by the Court of First Instance in 2018.

The appeal judges however ruled that Judge Anderson Chow’s assessment of Lubiano’s challenge in 2018 was “well-founded.” They also concurred that the arguments of Lubiano’s camp “cannot fill the evidential gap.”

Lubiano had lodged the case in 2017, arguing that the live-in requirement for workers heightens the risk of being denied fundamental rights, and that the Director of Immigration has no lawful authority to impose the requirement.

Lubiano’s counsel also argued the requirement breached foreign domestic workers’ rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Basic Law.

But Judge Chow ruled that it did not increase any such risks—and that the requirement was within the Director of Immigration’s powers.

Lubiano’s counsel argued that by virtue of the live-in requirement, there is a heightened risk that a worker would be forced to work on a rest day or undertake involuntary work within the 24-hour rest day, even when it is illegal.

But the judges saw the apellant’s argument relied on the right against forced and involuntary labor, which was related to protections under Hong Kong’s Bill of Rights Ordinance. The same ordinance reflects immigration reservation, which states that the ordinance does not “any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

The appeal judges ruled that by reason of immigration reservation, a foreign domestic worker cannot rely on the argument of heightened risk to challenge the live-in requirement of the foreign domestic helper scheme.

“The appeal can be dismissed on this ground alone,” the judges said.

The judges also ruled articles of the ICESCR cited by the appellant had not been incorporated into domestic law.

Court of Appeal Vice-President Johnson Lam Man-hon, and justices Thomas Au Hing-cheung and Aarif Barma penned the decision.

The Hong Kong government welcomed the ruling, saying that the ruling confirms the live-in requirement is lawful.

“The ‘live-in requirement’ underpins the long-established Government policy that priority in employment should be given to the local workforce and importation of foreign workers should only be allowed when there is proven manpower shortage in specific trades that cannot be filled by local workers,” it said.

Domestic workers are also fully aware of the live-in requirement when they sign the contracts, the government said.

The government also said that should employers fail to provide suitable accommodation for the helper, or should her employment rights are being infringed, he or she may report the case to the Immigration Department.

On the contrary, legal firm Daly & Associates expressed disappointment in the judgment.

“We are disappointed in this Judgment, which is a judicial stamp determining that Foreign Domestic Workers are not worthy of the basic rights afforded to others who live and work in Hong Kong lawfully,” it read.

The firm added the ruling sets off a dangerous trend in the protection of workers’ rights.

Dolores Balladares-Pelaez, chairperson of domestic workers’ group United Filipinos in Hong Kong , echoed the sentiment that the ruling discriminated against the workers.

“This is really outrageous and unacceptable,” she said in a statement. “The decision is discriminatory to migrant domestic workers. It shows that migrant domestic workers are treated like [second] class citizens, as modern-day slaves.”

The live-in requirement came into effect in April 2003, and is stipulated in the standard employment contracts of foreign domestic workers. Before this, employers and authorities could consent to their workers staying outside their place of work.