Domestic helper loses 'live-in' court challenge

Top News | Phoebe Ng Feb 15, 2018
The High Court has ruled that a "live-in" rule, requiring maids to stay with their employers, is neither unconstitutional nor discriminatory.

But the court's decision was slammed by migrant workers group, which compared it to "legalizing modern-day slavery."

Filipino Nancy Lubiano yesterday lost her judicial review challenge against the rule, as Justice Anderson Chow Ka-ming was not satisfied that the arrangement heightened risks of servitude and abuse.

"It was more about the living conditions of foreign domestic helpers than the live-in requirement," he said.

The judge backed the immigration rule, saying it fulfilled a "legitimate aim" of providing live-in domestic service.

"It is important to emphasize that ultimately it is a matter of choice for a foreign domestic helper to decide whether to accept the requirement in order to be permitted to come to work in Hong Kong," he said.

"They can of course choose to remain in their home country or work in other countries without such requirements."

In addition, Chow reckoned that since foreign domestic helpers are admitted to Hong Kong for live-in domestic service, it "cannot sensibly be argued" that the live-in arrangement is discriminatory.

Justice Chow also rejected Lubiano's arguments that maids are treated differently from other low-skilled workers under a "supplementary labor scheme," where they are not bound by the "live-in" rule.

"The two groups are plainly not in comparable positions," he said.

"There is enough of a relevant difference between them to justify the differential treatment."

The judge also could not see why Lubiano argued that the imposition of the rule was "beyond the powers" of the director of immigration, as it was merely a "functional requirement."

The live-in rule came into effect on April 1, 2003, and was aimed at preventing helpers from moonlighting.

Lubiano started working in Hong Kong in 2011 and claimed to have suffered abuse at the hands of her former employer.

Eman Villanueva, spokesman of Asian Migrants' Coordinating Body, said he was disappointed and worried about the judgment.

"We thought the government was promoting slavery in Hong Kong, but now it has got legal backing. It is like legalizing modern-day slavery," he said.

"Research showed workers were sleeping in washrooms, hallways and kitchens."

A government spokesman welcomed the ruling, saying it "upholds the legality" of the requirement.

"The rule 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," the spokesman said in a statement.

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January 2019