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Lubiano Nancy Almorin v Director of Immigration (CACV 112/2018)

Lubiano Nancy Almorin v Director of Immigration (CACV 112/2018)

This Appeal follows a succession of legal challenges brought by Foreign Domestic Workers in the Hong Kong Courts; in this case, by Nancy Lubiano who has lived and worked in Hong Kong since 2011.

The Appeal concerns the labour rights of Foreign Domestic Workers in Hong Kong and whether the mandatory policy of the Director of Immigration requiring all Foreign Domestic Workers to live in the place of their employment and with their employer is unconstitutional and risks infringement of fundamental rights.

Many who advocate for the rights of Foreign Domestic Workers argue that the ‘Live In’ rule not only has the effect of blurring the lines between work and rest time, but also exposes workers to the risk of exploitation and abuse. Ms. Lubiano is a case in point.

She has had her own experience of how the restrictive nature of the ‘Live In’ rule can have a serious and damaging impact on workers like her.

Cases of abuse in Hong Kong have been well documented and the plight of Foreign Domestic Workers regularly exposed. The case of Ewriana Sulistyaningsih  received much media attention;  severely abused by her employer, who was subsequently imprisoned, the comments of District Judge Woodcock who oversaw the criminal case were widely circulated – “In my view, such conduct could be prevented if domestic workers were not forced to live in their employers’ homes. The choice would make all the difference”. 

It is a damaging indictment on its recognition of basic human rights that such cases and comment have held little sway with the government of Asia’s ‘World City’; the rule remains and Foreign Domestic Workers continue to be treated as second class citizens. They comprise 5% of the Hong Kong population and their contribution is immeasurable, yet they have more than abuse to contend with. Foreign Domestic Workers are also excluded from protection under Hong Kong’s minimum wage laws; they are prohibited from acquiring permanent residency; and they are denied the most fundamental of human rights; the right to family life and to care for one’s children.

And now, with the advent of Covid-19, Domestic Workers face a new kind of discrimination; one provoked by an advisory issued by the Hong Kong SAR government on 30th January 2020 for Domestic Workers to stay at ‘home’ on their rest days. As reported in the South China Morning Post on 5th February 2020, the advisory has been interpreted by certain employers as being a direction. Workers are being denied their day off with the threat of contract termination hanging over their heads if they refuse to comply.

Living in also means limitations on the ability of Domestic Workers to manage their own health needs during these uncertain times. Domestic Workers have contracted Covid-19 from their employers. However, the Live-in rule dictates that basic choices open to most are denied to Domestic Workers.

The outcome of this Appeal will have significant ramifications for all Foreign Domestic Workers; in the event the challenge is successful, it will signify a promising, and long awaited shift in recognition of their rights; in the event, it fails, yet another judicial stamp will be placed upon the ever-increasing litany of cases whose outcomes have determined that Foreign Domestic Workers are not worthy of the basic rights afforded to other who live and work in Hong Kong.

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