Lubiano Nancy Almorin v Director of Immigration
Lam V-P, Barma and Au JJA
17, 18 March, 21 September 2020

Facts

The appellant, L, was a foreign domestic helper (FDH). L was required to apply to the Director of Immigration (the Director) for a visa, which was issued to her, in accordance with the FDH Scheme. That scheme, in practice, required L to live in her employer’s residence (the Live-In Requirement). The Live-In Requirement was designed inter alia to safeguard employment opportunities for non-live-in local domestic helpers by preventing FDHs from competing with them in the non-live-in market. It was not imposed as a condition of stay, however it was a term in the relevant standard employment contract, issued by the Director, and both the FDH and employer were required to provide undertakings that such arrangement would exist unless an exception was made by the Director. These undertakings formed part of the eligibility criteria for the exercise of the discretion to grant a FDH visa.

L unsuccessfully challenged the Live-In Requirement in the Court of First Instance. On appeal, L argued that the implementation of the Live-In Requirement was unconstitutional as it “heightened” the risk of a breach of art.7(b) and (d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR 7), which L contended had been given domestic effect by s.17(1) of the Employment Ordinance (Cap.57) (the EO) and were entrenched by virtue of art.39 of the Basic Law (BL 39). Section 17(1) of the EO relevantly provided for the right to one rest day in every period of seven days, while ICESCR 7 provided inter alia for the rights to safe and healthy working conditions (art.7(b)) and rest, leisure and reasonable limitation of working hours (art.7(d)). L submitted that the protection of these rights under BL 39 was not qualified by s.11 of the Hong Kong Bill of Rights Ordinance (Cap.383) (HKBORO) (the Immigration Reservation), because no cognate or similar right to the rights under ICESCR 7 existed in the Hong Kong Bill of Rights (BOR). The Immigration Reservation provides that, as concerns persons not having the right to enter or remain in Hong Kong, the HKBORO does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.

Judgment

The Court, dismissing the appeal, held that:

The Immigration Reservation applies to rights under the BOR and cognate rights under the BL; such rights had to operate as a coherent scheme and, in the immigration context, due effect had to be given to the Immigration Reservation. L had to rely on BL 39 in order to claim s.17(1) of the EO was constitutionally entrenched as the implementation of ICESCR 7, and the heightened risk argument was, in substance, one of forced and involuntary labour; cognate rights to the right against forced labour under art.4(3) of the BOR. Article 4(3) of the BOR was not included in s.5(2)(c) of the HKBORO as a fundamental, non-derogable right. Accordingly, there was no basis for suggesting the Immigration Reservation was not applicable. Hence, by reason of the Immigration Reservation, L, not having a right to enter and remain in Hong Kong, could not rely on an argument that was, in substance, a claim of forced labour, to challenge the Live-In Requirement, being a part of the immigration control policy set by the Director (Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 applied; Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, GA v Director of Immigration (2014) 17 HKCFAR 60, Ghulam Rbani v Secretary for Justice(2014) 17 HKCFAR 138 considered). (See paras.41, 46–47, 50–56.)
The Live-In Requirement fell within the scope of the reservation concerning the right to work in art.6 of the ICESCR, which applied in Hong Kong and provided for employment restrictions based on place of birth or residence qualifications to safeguard employment opportunities of local workers. The true substance of the heightened risk argument could be regarded as an attempt to circumvent that reservation and entailed its frustration. Adopting a coherent construction of BL 39, the heightened risk argument was, accordingly, not a permissible course and not the proper construction approach to be adopted in respect of ICESCR 7 (Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 applied). (See paras.60–62, 66–67.)
International obligations did not automatically have force of law on the domestic level. Their implementation required an objectively manifested intention on the part of the legislature to domesticate the relevant obligations. To hold otherwise would fail to give effect to BL 39(1) and be a distortion of the dualist principle. Moreover, while it was not the case that the courts could not construe provisions in international instruments to determine whether the contents of a domestic law were comparable, to do so in the context of the ICESCR, which addressed socio-economic and cultural rights in aspirational and generic formulation, was not a task for which the courts were institutionally equipped (JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, R (Miller) v Secretary of State [2018] AC 61 applied; R v Lyons [2003] 1 AC 976, GA v Director of Immigration (2014) 17 HKCFAR 60 considered). (See paras.82–83, 85, 87–89, 95–96.)
On the evidence, there was no objectively manifested intention on the part of the legislature to implement ICESCR 7 in s.17(1) of the EO. It had not been domesticated. (See paras.98–99, 101–102, 105, 108–110.)
(Per curiam) The heightened risk approach is not applicable in Hong Kong and the sufficient causal connection standard should not be adopted. There is a significant difference between the heightened risk approach and unacceptable and significant risk of violation of fundamental rights, which concerned rights to systemic procedural fairness. Whether that latter approach could be transposed to support a general approach for systemic challenge based on unacceptable or significant risk of encroachment of socio-economic rights was left open (R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, Canada v Bedford [2013] 3 SCR 1101, R (Tabbakh) v Staffordshire Probation Trusts [2014] 1 WLR 4620, R (Woolcock) v Secretary of State for Communities and Local Government [2018] 4 WLR 49 considered). (See paras.117–118, 120, 128–129, 140–142.)

Appeal

This was an appeal against the judgment of Anderson Chow J by which he dismissed the appellant’s application for judicial review concerning a systemic challenge to the “Live-In Requirement” applicable to foreign domestic workers admitted to work as such in Hong Kong (see [2018] 1 HKLRD 1141).