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Lubiano Nancy Almorin v The Director of Immigration: Live-in Rule of Foreign Domestic Helpers in HK


http://www.sirjournal.org/blogs/2018/1/31/foreign-domestic-workers-in-hong-kong

On 14 Feb 2018, the High Court of Hong Kong quashed the application of judicial review over the “Live-In Requirement’ on Foreign Domestic Helpers (“FDH”) in Hong Kong. The decision was heavily criticized for failing to recognise the severity of the plight of FDH caused by this rule.


Lubiano’s application was based on four grounds: The imposition of the Live-In Requirement was ultra vires; the implementation of the Requirement exposes FDH to severe breach of human rights; the Requirement is discriminatory against FDH at workplace; the Requirement is irrational in the public law sense.


As Lubiano’s Counsel argued, the Requirement infringes the rights of FDH under the Hong Kong Bill of Rights, which prohibits forced labour and protects the fundamental human rights of FDH. Recent protests by FDH have demonstrated the serious problem of physical abuse on many FDH. A recent Mission for Migrant Workers survey indicates that more than 50% of FDH have suffered from verbal abuse whereas almost 20% has been physically abused. In 2014, the criminal arrest and imprisonment of the employer of Erwiana, an Indonesian FDH, brought world-wide attention to this grave issue, in which Erwiana suffered from grievous bodily harm due to being beaten up by her employer. Their plight is severely worsened by the “Live-In Requirement” implemented by the Immigration Department. As per Clause 3 of the standard employment contract (ID 407) provided by the Immigration Department, FDH are obliged to reside in the home of their employers, except for Sundays, their only full day-off of the week. This Requirement has given FDH no other choices but to continue staying with that household even in abusive and deteriorating conditions. In addition to exposing them to risk of abuse, being forced to stay with the household 24-7, the FDH had to standby to provide readily available services 24 hours a day, which results into long working hours and deprivation of adequate rest.


It is apparent that the case was decided with a heavy weigh on policy factors instead of the human rights of FDH and constitutionality of the Requirement. The court asserted that the Requirement does not directly breach of fundamental rights even it exposes FDH under risks of abuse. The 62-page judgment reasoned that FDH are given the right to terminate the contract and leave Hong Kong if they find it unacceptable to work with the household. Besides, abolishing the Requirement would reopen the floodgate for debate and applications of judicial review over the right of abode issue of FDH. Regarding this, the Court of Final Appeal ruled that they do not enjoy this right as they do not fall under the class of “ordinary residents”.


The decision was a blatant disregard to how the Requirement heightens the risk of abuse of the FDH. Only if the Requirement is lifted can there be more discussion on better protection on FDH employment and human rights.



Serena Chan

Asia Section Feature Writer

23 March 2019

 

Bibliography

Case

Lubiano Nancy Almorin v The Director of Immigration HKCAL 210/2016

Ordinance

Employment Ordinance 1968 (Cap. 57)

Secondary Sources

Raquel Carvalho, ‘Study finds Hong Kong domestic helpers subjected to employment terms abuse by more than 70 per cent of agencies’ (SCMP, 11 May 2017) < https://www.scmp.com/news/hong-kong/law-crime/article/2093836/study-finds-hong-kong-domestic-helpers-subjected-employment>

Siu Jasmine, ‘Judge quashes domestic helper’s bid for change to “live-in” rule in Hong Kong’ (SCMP, 14 February 2018) < https://www.scmp.com/news/hong-kong/economy/article/2133296/judge-quashes-domestic-workers-bid-change-live-out-rule-hong >



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.

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