Introduction

In Hong Kong, foreign domestic helpers ("FDHs") are required to live in the place of their employment. Under Hong Kong's immigration and labour policy, the Director of Immigration would only grant employment visas to FDHs if they undertake to reside at their employer's residence ("Live-In Requirement"). In 2018, the Court of First Instance ("CFI") dismissed the application for judicial review by Nancy Almorin Lubiano ("Applicant"), a FDH, who challenged the constitutionality of the Live-In Requirement. She appealed against the CFI's judgment to the Court of Appeal ("CA"). On 21 September 2020, the CA handed down its judgment in Lubiano Nancy Almorin v Director of Immigration (unreported, CACV 112/2018, 21 September 2020) and upheld the CFI's decision. Our discussion below outlines the main reasoning behind the CA's decision.

The CFI's decision

The CFI dismissed the judicial review on, inter alia, the following grounds:

1. The right to safe and healthy working conditions, adequate rest and limitation on working hours under Articles 7(b) and (d) of the International Covenant on Economic, Social and Cultural Rights ("ICESCR") was not given effect in Hong Kong by the Employment Ordinance (Cap. 57) ("EO").

2. There was insufficient evidence to show that the Live-In Requirement would heighten the risk of violation of the FDHs' fundamental rights;

3. The immigration reservation as provided for in section 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383) ("BORO") ("Immigration Reservation") applied in this case. The Immigration Reservation provides that, in relation to those not having the right to enter and remain in Hong Kong, the BORO does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. The right under Articles 7(b) and (d) of the ICESCR ("ICESCR 7 Right") are not non-derogable under section 5(2)(c) of the BORO; the Immigration Reservation superseded such right.

Grounds of appeal

At appeal, the Applicant relied on the following main grounds:

1. the CFI erred in holding that the right to rest days under Article 7(b) and (d) of the ICESCR has not been given domestic effect by the EO; and

2. the CFI erred in holding that the Live-In Requirement did not unacceptably increase the risk of violation of that right.

Issues in dispute at the appeal

The principal issues in dispute before the CA are:-

1. What is the effect of (a) the Immigration Reservation and (b) the reservation under Article 6 of ICESCR ("ICESCR 6 Reservation") in respect of the Applicant's challenge? The ICESCR 6 Reservation, in its current form as in force in Hong Kong, essentially provides that ICESCR Article 6 does not preclude the formulation of regulations by the Hong Kong Government ("Government") for employment restrictions, based on the place of birth or residence qualifications, for purpose of safeguarding the employment opportunities of local workers in Hong Kong. Article 6 of the ICESCR provides for the right to the opportunity to gain a living by work which one freely chooses or accepts.

2. Whether the ICESCR 7 Right has been given legal effect in Hong Kong by way of the EO?

3. Whether the constitutionality of the Government's measure may be challenged on the basis that it increases or heightens the risk of violation of fundamental right?

4. Whether the Live-In Requirement has causal connection to the risk of harm relied on by the Applicant?

5. Whether the Live-In Requirement is justified if answers to issues 2 to 4 above are affirmative?

Issue 1: Immigration Reservation & ICESCR 6 Reservation

The Applicant suggested that by virtue of the Live-in Requirement, there is a heightened risk that FDHs would be forced to work on a rest day or undertake some work involuntarily by the employer on a rest day. This gives rise to a forced labour situation, which is protected against by Article 4(3) of the Hong Kong Bill of Rights. The CA observed that although case law suggests that the Immigration Reservation cannot be relied upon to derogate from some fundamental non-derogable rights identified under section 5(2)(c) of the BORO, the substance of the right relied upon under the Applicant's heightened risk argument (which is the right against forced and involuntary labour) is not such a right. Thus, the Immigration Reservation applies to preclude the Applicant (who does not have the right to enter and remain in Hong Kong) from relying on the ICESCR 7 Right to establish her case.

As to the ICESCR 6 Reservation, the CA held that the Live-In Requirement was designed to safeguard employment opportunities for non-live-in local domestic helpers by segregating the labour market in Hong Kong for domestic helpers. Therefore, the Live-in Requirement falls within the scope of the ICESCR 6 Reservation. Lifting the Live-In Requirement would render the segregation of the two facets of the labour market for domestic helpers ineffective.

Issue 2: Whether the ICESCR 7 Right is domesticated in Hong Kong

Case law provides that the provisions of international covenants and conventions are not directly enforceable in Hong Kong unless implemented by domestic law. On whether the ICESCR 7 Right is domesticated in Hong Kong, the Applicant suggested that one only needs to objectively compare the contents of the domestic legislation with the provisions of the international treaty to see if the same kind of obligations were provided for and if so, to what extent.

The CA however rejected this argument, as the Applicant's argument means there is then no need to have any act on the part of the legislature to implement the obligation(s) under an international convention or covenant, and any matching or similar right in domestic law could then be a right conferred by the common law instead of statute. The CA held that an act of domestication is required, and such act must be an act of the legislature. There must be objectively manifested legislative intent to implement the ICESCR 7 Right before it becomes enforceable under domestic law.

Similarly, the Applicant further contended that the ICESCR 7 Right had been partly incorporated into domestic legislation in the form of section 17 (Grant of rest days) of the EO by suggesting that the latter addressed the right to rest and periodic holidays under ICESCR Article 7(d) and the right to a safe and healthy working conditions under ICESCR Article 7(b). Nonetheless, the CA rejected this argument since (a) the statutory entitlement to rest days in Hong Kong was first found in the 1970 Revised Edition of the EO, whereas the ICESCR only first applied to Hong Kong in 1976, and (b) there are differences in the contents of section 17 of the EO and the underlying provisions to the ICESCR 7 Right.

Issue 3: Whether the constitutionality of a government measure

may be challenged on the basis that it increases or heightens

the risk of violation of fundamental right

The CA considered several English and Canadian authorities and held that they could not support a general approach for a systemic challenge based on unacceptable or significant risk of encroachment of socio-economic rights like the ICESCR 7 Right. This approach would invite an unwarranted expansion of judicial review and would involve the courts in risk and benefit analyses, which are beyond their institutional competence.

Issue 4: Causal link between Live-In Requirement

and the risk of harm to ICESCR 7 Right

The CA held that the Applicant is subject to a high threshold in proving the causal connection between the Live-In Requirement and the risk of ill-treatment by the employer. In making its ruling on causation, the CA agreed with the CFI's judgment, which stated that if the employer were to engage in unlawful acts towards the FDHs, such acts could take place when the FDHs are physically in their workplace (namely the employer's home) anyway. Where illtreatments occur, the real cause is the employer and not the arrangement of the Live-In Requirement itself. As such, the Applicant failed to meet the high threshold in proving causation.

Issue 5: Justification of the Live-In Requirement

Accordingly, since the above relevant issues were answered in the negative, the CA held that the issue of justification did not arise for consideration. The appeal was dismissed.

Takeaway

The Live-In Requirement has been a controversial topic in Hong Kong. Given the ruling by the CA, the status quo that FDHs have to stay at their employers' residence under the Live-In Requirement remains intact. Whilst it is yet to be seen whether the Applicant would appeal the decision of the CA to the Court of Final Appeal, the legal issues involved are possibly of great general or public importance in Hong Kong and it will not too surprising if this case may be further appealed to the highest court in Hong Kong. ONC Lawyers will keep an eye out for any further development and changes in the law and write further on this topic when there are such development and changes.