The Court of Appeal has ruled against a domestic helper challenging the controversial Hong Kong government requirement that she and 380,000 fellow workers must live with their employers.
Filipino Nancy Almorin Lubiano lodged the city’s first such judicial challenge in 2017, arguing for a choice to live away as they called the mandatory rule unconstitutional for the threat it posed to helpers’ fundamental rights, in violation of international charters.
But the Court of First Instance in 2018 dismissed the application for judicial review, concluding it was within the director of immigration’s powers to introduce the “functional requirement” and that helpers had a choice to terminate employment, while noting the court had to “act cautiously”, given the potentially far-reaching implications if Lubiano should win.
Foreign domestic helpers have long called for the relaxation of the rule introduced in April 2003, and implemented through standard employment contracts and pledges when helpers applied for visas.
Before that, they could arrange outside accommodation as long as they obtained consent from their employers and relevant authorities. In 2002, there were about 100 such cases among the 200,000 domestic helpers in the city.
Many argue the live-in arrangement heightens the risk of abuse as seen in the shocking 2014 case of
Erwiana Sulistyaningsih, whose Hong Kong employer was jailed for six years for torturing her.
But the government maintained the requirement was an essential feature of the importation scheme designed and developed to meet the demand for live-in domestic services, and countered that lifting the rule could have serious repercussions for Hong Kong’s economy and society.
Human rights lawyer Mark Daly, who represented Lubiano as a client instructed by Daly & Associates, said the live-in requirement was part of the wider systemic discrimination faced by foreign domestic workers.
“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,” Daly said in a statement.
He said given the widespread and well-documented lack of enforcement of measures to protect the labour rights of foreign domestic workers, the courts should adopt a proper rights-based approach to ensure these rights.
“In these critical times when rights protection by the judiciary is supposed to be a fundamental element of the rule of law, this is a dangerous trend,” he added.