Court upholds live-in rule for foreign domestic helpers

The Court of Appeal has affirmed the live-in requirement for foreign domestic helpers, dealing a setback to those who believe the rule undermines the rights and freedoms of helpers working in Hong Kong, RTHK reports.

It is not immediately clear if Nancy Almorin Lubiano, from Philippines, would take the case to the Court of Final Appeal.

The Court of Appeal on Monday rejected her appeal.

The court battle began in 2016 when Lubiano filed a judicial review challenging the live-in-requirement.

It was upheld by the Court of First Instance in 2018, which ruled that not requiring foreign helpers to live with their employers would put them in direct competition with their local counterparts, thus breaching the principles of importing labour.

That prompted Lubiano to launch an appeal.

The hearing focused on what happened to helpers on their rest day.

Lubiano's lawyer Paul Shieh cited the International Covenant on Economic, Social and Cultural Rights, which says everyone has the right to “just and favorable conditions of work”, and to enjoy rest, leisure, with a reasonable limitation of working hours and periodic holidays.

But in their judgement, the three-judge Court of Appeal ruled that the live-in requirement did not generate risks of helpers being forced to work on their rest day, saying they are free to stay away from their employers' home.

The court also said aspirations of an international covenant are not applicable unless they have been incorporated into domestic legislation, even if the government says it complies with the relevant obligations.

The judges added that the live-in rule is an immigration policy relating to the protection of local workers, so it cannot be challenged by way of what’s essentially a claim of forced labor.

Lubiano's legal team expressed disappointment with the judgement, calling it "a judicial stamp determining that foreign domestic workers are not worthy of the basic rights afforded to others".

"Regrettably, today, the court reaffirmed that human rights provisions in the Basic Law... continue to be emptied of any practical meaning and effect," the statement says.

The live-in requirement for foreign domestic helpers first took effect in 2003. There were calls for a change following the case of Indonesian helper Erwiana Sulistyaningsih who was abused by her employer, with the judge suggesting it could have been prevented if helpers had not been forced to live with their employees.

Those who are against the requirement said it goes against the Hong Kong Bill of Rights and deprived helpers of their rest time.

"It's part of the institutionalization of modern-day slavery in Hong Kong," said Eman Villanueva of the Asian Migrants' Coordinating Body. "And I think the decision is more political than legal... it's still disheartening to hear the unfavourable ruling after all these years of advocacy work in Hong Kong promoting the rights of migrant domestic workers. It seems that the government doesn't change that much in terms of its treatment of migrant domestic workers."

Those in favor of the rule said without it, it would drive up demand for housing and lead to higher insurance and employee compensation.

The government insists the live-in rule is part of the helpers' contract, forming the basis that allows them to come and work in Hong Kong.