A Hong Kong court has dismissed an appeal challenging a government requirement for foreign domestic workers to live with their employers.

The Court of Appeal on Monday rejected Filipino domestic worker Nancy Almorin Lubiano’s appeal against her unsuccessful legal challenge in 2018, which sought to overturn the compulsory live-in rule. She described the requirement as unconstitutional and potentially infringing on the rights of foreign domestic workers.

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Domestics helper gathering in central on Sunday May 31, 2020. Photo: May James/HKFP.

Since 2003, domestic workers in Hong Kong have been required to live in the place of their employment, with “suitable accommodation” provided by their employers. Representing Lubiano, barristers Paul Shieh SC and Earl Deng – instructed by Daly & Associates – argued the worker had experienced the “restrictive nature” of the requirement.

They criticised the live-in rule as blurring the lines between work and rest, as well as exposing workers to exploitation and abuse. It also “heightened” the risk of breaching the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other rights under the Basic Law, they said.

But the three justices who heard the appeal disagreed. They dismissed Shek’s argument as “based on his alleged everyday experience [which] cannot fill in the evidence gap” and said it could not be used to challenge the rule, which is part of the immigration control policy set by the Director of Immigration.

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High Court. File photo: Rachel Wong/HKFP.

They also called the ruling delivered by Judge Anderson Chow in 2018 “well-founded.”

“I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the FDH [foreign domestic helper] is living in the employer’s residence,” Chow wrote in his previous ruling, which was quoted in the appeal judgement.

He added: “Where ill-treatment does occur, it seems to me that the real cause of the problem lies in the employer, instead of in the fact that the FDH is required to live in the employer’s residence.”

In a statement, Daly & Associates said the firm was disappointed with the judgement and called it a “judicial stamp” that dismissed foreign domestic workers as “not worthy” of the basic rights enjoyed by others living and working in Hong Kong.

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Photo: Asian Migrants Coordinating Body.

The firm also criticised the live-in rule as symptomatic of wider “systemic discrimination” against foreign domestic workers in the city.

“Regrettably, today, the Court reaffirmed that human rights provisions in the Basic Law continue to be emptied by any practical meaning and effect,” the statement read.

“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.”

The ruling sparked concerns among migrant workers’ rights groups, including HELP for Domestic Workers, which has operated in Hong Kong for more than three decades. The NGO said the live-in rule contributed to the mistreatment of domestic workers and called for legal “ambiguities” enabling exploitation to be addressed.

“It is important to acknowledge that many [domestic workers] by reason of the mandatory live in rule continue to experience or are exposed to the risk of physical and sexual violence by their employer’s household,” the group wrote in a statement.

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Eni Lestari (centre-right). Photo: Asian Migrants Coordinating Body.

Another advocate of domestic workers’ rights, Eni Lestari, told HKFP the appeal dismissal showed that local authorities had no intention of respecting the rights of migrant workers as other foreigners employed in Hong Kong.

The chairwoman of the International Migrants Alliance said the judgement would pose a challenge for the domestic workers’ community ahead, as they struggled to eradicate what she described as “modern slavery” in the city.

“If Hong Kong applauds itself as a city that upholds human rights, I think this ruling is really contrary to that kind of a claim… I hope the society will realise that and also protest against the Hong Kong government to eradicate the modern slavery practice in Hong Kong,” she said.

Ho Long Sze Kelly is a Hong Kong-based journalist covering politics, criminal justice, human rights, social welfare and education. As a Senior Reporter at Hong Kong Free Press, she has covered the aftermath of the 2019 extradition bill protests and the Covid-19 pandemic extensively, as well as documented the transformation of her home city under the Beijing-imposed national security law.

Kelly has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration. Prior to joining HKFP in 2020, she was on the frontlines covering the 2019 citywide unrest for South China Morning Post’s Young Post. She also covered sports and youth-related issues.