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HUMAN RIGHTS AND RULE OF LAW ADVOCACY

Court of Appeal ruling on the labour rights of Foreign Domestic Workers in Hong Kong

PRESS RELEASE

CACV No. 112 of 2018

(On appeal from HCAL 210/2016)

Lubiano Nancy Almorin v Director of Immigration

 

By a judgment handed down by the Honourable Lam VP, the Honourable Barma JA and the Honourable Au JA this afternoon, the Court of Appeal rejected the judicial review challenge that 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 (“Live-In Requirement”) is unconstitutional and risks infringement of foreign domestic workers’ labour rights.

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 for nearly a decade.

It is the Applicant’s case that the Live-In Requirement heightens the risk of breach of fundamental rights provided for by Art 7(b) and 7(d) of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) as domesticated under provisions of the Employment Ordinance, (Cap. 57), and constitutionally guaranteed by Arts. 39 and 41 of the Hong Kong Basic Law (“BL”), without adequate justification, and is therefore unconstitutional.

In the Judgment, the Court of Appeal declared, inter alia, that

…by reason of the Immigration Reservation, an FDH, being a person not having the right to enter and remain in Hong Kong, cannot rely on the argument of heightened risk of breach of ICESCR 7 right which is in substance a claim of forced labour (and as such a cognate right to the right under BOR4(3)) to challenge the Live-In Requirement in the FDH Scheme which is part of the immigration control policy set by the Director”.

Statement from Daly & Associates: “We are disappointed in this Judgment, which marks 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. The Live-In Requirement is thus symptomatic of the wider systemic discrimination faced by Foreign Domestic Workers in Hong Kong. Given the widespread and well-documented lack of enforcement of measures to protect labour rights of Foreign Domestic Workers, as provided in the Standard Employment Contract (“SEC”); under the Employment Ordinance (“EO”), and as further protected under international law in the ICESCR, the onus must be on the Courts to adopt a proper rights-based approach in order to ensure that such rights are adequately given effect to. Regrettably, today, the Court reaffirmed that human rights provisions in the Basic Law (and in this case the ICESCR) continue to be emptied of any practical meaning and effect. 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.”

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