Date Posted: 23/08/2021
Domestic helpers are not permitted to live-out
Domestic workers have a lot to consider when moving to work in foreign countries, one of the most important being their accommodation.
In this case, domestic workers in Hong Kong up until 2003 can live in or out of work, and most employers and employees almost always choose to live out. The reasons range from the size of employers' homes to the flexibility of programs and the freedom of their foreign domestic workers. It also allows domestic workers to better distribute work and personal time.
However, the Hong Kong government passed a law on April 1, 2003, which prohibits all foreign domestic workers from living out under FDH protection; the law is intended to ensure that all employees have adequate housing. The need to live in is part of the conditions of stay.
The only exception is the maintenance of the same employer and domestic helper who received authorization from the Immigration Department before April 1, 2003, to live out. However, the employer must declare it and apply for a special visa renewal authorization.
However, the change in legislation has not stopped the phenomenon of domestic workers living out. Many have criticized the law, claiming that it has caused more inconvenience to the worker and the employer. Having to work and live in the same house can strain the employer-employee relationship and make foreign domestic workers vulnerable to employer abuse.
The law has also created a "cat-mouse" situation, as most prefer a live-out arrangement but avoid doing so. According to the law, agreements between employer and employee entering into an active agreement may not be excusable in front of the law.
They claim they agreed to live in but did not do so, which is a misrepresentation and an offence for the Immigration Department under the Hong Kong Immigration Regulations. The worst-case scenario is a fine (maximum) of HK$150,000 and 14 years in prison. People who entered into such an agreement or do not know the consequences of their actions do not think they will get caught or do not realize the seriousness of the consequences.
The growing popularity of live-out agreements between employers and their foreign domestic workers has led the government to step up the crackdown on live-out helpers. The authorities will carry out unannounced inspections, and those arrested will have to go to court and face criminal charges for aiding and inciting to violate their living conditions. On average, courts deal with two to three such cases per week.
Given the seriousness of a breach of the live-out agreement, employers and employees are recommended to avoid a live-out agreement. It is recommended that you follow the regulations, discuss privacy issues with your domestic helper, and determine if it is worth taking the risk of having a live-out helper.
The legal consequence of the violation of the live-in rule
Often overlooked or underestimated, lying about accommodation arrangements would misrepresent the Immigration Department and constitute a crime under the Hong Kong Immigration Regulations. It could also lead to a (maximum) fine of HK$150,000 and up to 14 years in prison.
Can domestic workers live outside the employer's residence?
No, it is illegal for domestic workers to live out of their employer's residence. Employers must provide "adequate accommodation" to domestic workers in their homes. According to the standard employment contract, the employer must provide free accommodation to the foreign domestic helper according to the standard specified in the "Accommodation and domestic duties" of the employment contract.
What happens to you when your domestic helper is caught living out?
The growing popularity of undercover housing offers among employers and their domestic workers has been a significant concern for the government. It has led to a new crackdown on domestic workers living abroad.
Authorities sometimes carry out surprise inspections to find out where the domestic workers live. If caught, they will charge you with falsifying statements to the Immigration Department. Both the employer and the domestic worker will have to go to court and face criminal charges based on collaboration in violating residence conditions. And it happens often: on average, the courts see 2-3 of these cases weekly.
A first-time defendant may only be suspended depending on the case, but you cannot rely on this. Fines, imprisonment, exclusion from future applications for domestic helpers are all possible outcomes.
Live out claim
After they passed the law, many people criticized it. Many have argued that the law puts pressure on the employer-employee relationship.
The main reason is that there is little space in the house, which reduces the house's privacy. This, in turn, can reduce the level of respect required between the two (employer and team member). They may also end up developing another type of relationship, which can be problematic. The other reason is that some domestic workers can be abused by employers while playing a vital role. Some employers have come to treat their domestic workers as slaves rather than employees and not like any other employee you have. Therefore, it seems that the best way to proceed is to abolish the rule, but the practice remains prohibited.
Critique of the current live-in rule
Many have criticized this rule of coexistence because it causes more inconvenience to both employers and domestic workers. Living and working in the same house sometimes pressures the relationship between employer and domestic worker, especially since housing in Hong Kong is small and there is little or no private space for either party.
And if both parties, the employer and the employee, prefer a live-out, should they avoid it? In addition, this law created a "cat-mouse" situation as many employers and domestic workers have slipped into a live-out arrangement.
At HelperFirst, we understand that this cohabitation situation can be pretty stressful and unusual, which is why we've created a few guides to help you manage this relationship with more ease.
Make a decision
Although it is difficult for the government to control the livelihoods of domestic workers, the police are always on the lookout, and the government can sometimes organize a crackdown. You will need to decide in person whether you want to hire a foreign domestic worker or a resident who can work as a legal domestic worker.
In addition, given the seriousness of a breach of an indefinite contract, employers and domestic workers are strongly recommended not to consider a live-out contract. We strongly recommend that you comply with regulations and discuss privacy concerns with your home helper.
The disadvantage of the live-out rule
However, others saw the bright side of this rule. This rule was implemented to help foreign domestic workers' lives easier. For the most part, that might not be a big deal. However, for foreign domestic helpers, the lack of having someone around is one major thing. By law, this was a guaranteed requirement for anyone in this type of work. There is also a reduced risk to help with safety in a new city and also cost of living pressure. The fact that employers must provide a support position is essential. It is beneficial for any foreigner in this country.
Consequences of breaking the law – The live-out rule!
Many people don't think about the law, which leads to them getting on the wrong side of the law. As a result, they had problems with the immigration office. The domestic worker could face deportation! In some more extreme cases, expelled and banned from any form of work in the country. Employers, on the other side, could face heavy fines or even jail time. Consequences can be a maximum fine of HK $ 150,000 or up to 14 years in prison! If an employer does not meet its commitment, foreign domestic workers' future applications for employment may be rejected.
The Next Move
You must take the required steps to help the domestic worker to start living in your home. Even if they did with the view of being fair to the helper or wanting more space between employer and employee, explaining the whole helper scenario and having them move back is the best decision. Avoiding any problems with the immigration service is an important thing that comes in handy. Everyone needs to ensure they have the correct information and know exactly where they are and what is required of them as regards the law on the whole situation. This enables everyone to adapt to the rule and get the most out of it.
What could happen if your domestic worker lives out?
If it turns out that a domestic worker is caught living out, the consequences for both the employer and the employee can be severe. As an employer, you can be fined up to HK$ 150,000, imprisoned, and lose the right to hire a domestic worker in the future. Domestic workers are subject to arrest, deportation, and being banned from working in Hong Kong.
We work hard to produce high-quality, accurate, and up-to-date information resources because when employers and domestic helpers are informed, they have the power to make good decisions. If you have any complaints or questions regarding live-out rules, don't hesitate to contact us.
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