The Legal Consequences of Having a Live-Out Domestic Helper in Hong Kong

The popularity of live-out domestic helpers in Hong Kong has been rising in recent years. But what are the consequences?

By Janet Salim

 

Reasons for Live-Out Arrangements

This arrangement has gained favour amongst employers for many reasons. One such reason is the small-sized houses in Hong Kong, which makes it more convenient for employers for their foreign domestic helpers (FDHs) to live out than to live in. On the same note, such an arrangement is preferable among domestic helpers because it gives them more flexibility and freedom to use their time. It also creates a better division of work and personal time for domestic helpers as they are not on “constant call”.

 

The Live-In Rule – Significance of 1 April 2003

In 2003 the Hong Kong government passed a new law that prohibits all foreign domestic helpers from living out. The government has stated that the purpose of passing this new law is to protect the foreign domestic helpers, to ensure that they will have proper accommodation given the high property value in Hong Kong.

After 1 April 2003, all Standard Employment Contracts for domestic helpers prohibit employer and employee from entering into a live-out employment arrangement because the live-in requirement is part of the conditions of stay for domestic helpers.

There is one exception: if the same employer and domestic helper couple have received permission from the Immigration Department before 1 April 2003 to live out they can continue to do so. But only if they declare this and request special permission at the time of visa renewal. This group is increasingly shrinking, but the change in law has not stopped the live-out domestic helpers phenomenon.

Live-out domestic helpers often stay in boarding houses
Example of a boarding house where live-out domestic helpers stay.

Critiques of Current Living Arrangement Law

Many have criticized this law for causing greater inconvenience for both the employers and employees. Working and living in the same place puts pressure on the employer-employee relationship especially because Hong Kong houses are small and there is little to no private space for both parties.

The rationale behind the passing of the new law itself does also not make sense. The law claims to protect the domestic helper, but as some domestic helpers say, in fact, it makes them more vulnerable.

And why, if both sides, the employer and the employee, prefer a live-out arrangement, should they be refrained from doing so?  Moreover, this new law has created a “cat-mouse” situation, since many employers and employees would furtively enter into a live-out arrangement.

 

No Child’s Play

Of course what may seem like an innocuous agreement for both the employer and employee to enter into a live-out arrangement may not seem so in front of the law. Playing cat and mouse with the government would involve many offences that may lead to serious criminal sanctions.

For example, in order for employer and employee to enter into a live-out arrangement, they would still need to state that they have entered into a live-in arrangement when the employee applies for a working visa and when the employer applies for the application for employing a FDH. Such trivial lie would amount to a false representation to the Immigration Department and is an offence under the Hong Kong Immigration Ordinance. It could even lead to a (maximum) fine of $150,000 and imprisonment of 14 years.

In most cases, people who have entered into a live-out domestic helper arrangement either do not know the consequences of their actions, don’t think they will get caught or they don’t realize how serious the consequences could be. After how can you imagine that it may lead to a 14-year imprisonment? Employers and domestic helpers both consider it unfair as they believe they have entered into a fair agreement and have not done anything wrong.

 

What Happens in Case of Finding a Live-Out Domestic Helper?

The rising popularity of live-out arrangement between employers and their domestic helpers has been of great concern for the government and has prompted an increased crackdown on live-out domestic helpers.

Sometimes the authorities conduct surprise inspections to uncover live-out arrangements. If this happens you will be charged with having made false representation to the Immigration Department. Both employer and domestic helper have to go to court and face criminal charges based on aiding and abetting a breach of conditions of stay. And it happens more often than you think, on average courts see about two to three of these cases per week.

Depending on the severity of the case, a first-time offender may only face a suspended, but don’t count on this. A fine, imprisonment, exclusion from Hong Kong and future applications to employ a domestic helper are all possible outcomes.

 

So What to Do?

Although it would be difficult for the government to monitor the living arrangement of domestic helpers, the police force continues to be on the look-out and the government may occasionally arrange for a crackdown. You will have to decide for yourself whether or not having a live-out domestic helper arrangement is worth the risk.

Moreover given the gravity of the offence for a live-out arrangement, it is highly advisable for both the employers and employees to avoid a live-out arrangement. But we strongly advise you to follow the regulations and discuss privacy concerns with your domestic helper.

Before hiring a domestic helper, make sure you are aware of the main regulations on foreign domestic helpers in Hong Kong.