Challenge Against Helpers' Live-in Rule Thrown Out

The High Court on Wednesday dismissed a legal challenge by a foreign domestic helper against the live-in requirement for those on maternity leave.

Yvette Dingle Fernandez had sought to challenge the refusal by the labour commissioner and immigration director to grant her a waiver of the live-in policy after she gave birth to her daughter in 2019.

The court heard that Fernandez, 27, found out that she was pregnant months after arriving in Hong Kong from the Philippines in 2018.

She told her employer that she wished to take her baby back to the Philippines when she went on maternity leave, and then return to work in Hong Kong.

But the employer insisted she needed to stay in their flat – without the baby – during maternity leave, citing the live-in rule required by law and stated in the employment contract.

The helper then raised the issue with the Immigration and Labour departments and tried to seek a waiver of the live-in requirement.

The High Court on Wednesday refused to grant leave for her judicial review application.

High Court judge Anderson Chow said there's no proper basis for the authorities to grant such a waiver.

"The application for leave to apply for judicial review is based on a false premise, and the intended application for judicial review has no realistic prospect of success," Chow said.

The judge added that the live-in policy is an undertaking agreed by the helpers and employers in their contracts, and the immigration director has no role to play in any changes to the terms of contract.

"Although the Director has power not to enforce such undertaking, he has no power to waive the live-In requirement in so far as it operates as a contractual obligation.

"In my view, the [Labour] Commissioner was entitled to adopt the practical approach that, given the parties could not reach agreement, the application for the no objection letter [for the maid to live outside her employer's home during maternity leave] could not or would not be further processed."

While lawyers for Fernandez had argued that the terms in the employment contract should not limit where helpers can stay on their days off, the judge said this was not the right case to debate the wider issue.

He stressed that his dismissal of the application should not be read as the court accepting the government's stance on the live-in policy.