How Hong Kong legislation creates undocumented children:
The ‘live-in’ rule is certainly a hot and controversial topic in the sphere of Domestic Worker’s rights and there’s one argument in its favour which the reader may find surprising; forcing domestic workers to live-in as a means of keeping unwanted pregnancies out. Unfortunately, as plenty of over-bearing parents across time have learned: confinement and control are not effective forms of contraception. What then will happen to a domestic worker who finds herself unexpectedly expecting? And what will happen to her child? Well, thanks to a myriad of targeted and discriminatory laws both Mother and Child will likely become undocumented members of a nation which does not care to recognize nor protect them.
In Hong Kong, it is legally mandated employers provide Domestic Worker’s with 10-weeks paid maternity leave[1] and despite risking a 10,000 HKD fine should an employer fire a pregnant worker, it is a common practice which all too often goes unreported and unpunished. With livelihood and residence linked, losing their employment means these disenfranchised women face not only loss of income but homelessness. To make matters worse, Hong Kong imposes a ‘two-week’ rule[2] in which workers have 14 days to obtain new employment before the terms of their working visa are breached and they are required to return to their country of birth. Often too close to term to be eligible for flight or in some instances simply having no home to return to, these women and the children they’ll bear must remain as newly illegal over-stayers in Hong Kong.
Under Article 24 of the Basic Law, to become a permanent resident of Hong Kong one must have “ordinarily resided” in the city continuously for no less than seven years. In 2013 the Court of Final Appeal (CFA) deemed Domestic Worker’s ineligible of ever obtaining permanent residency as their residence is “highly restricted” and their ability to enter Hong Kong is tied solely to their employment as extensions of their employers[3]. Thus, a domestic worker living openly and legally is equally as barred from residency as those who remain illegally. Despite the fact Article 7 of the Convention on the Rights of the Child[4] calls for every child to immediately be registered and given a nationality at birth; Hong Kong however does not require immediate registration and according to Barrister Peter Barnes[5] “since helpers can never accrue the necessary seven years of ‘ordinary residence’, their children are not entitled to permanent residency just because they were born in Hong Kong”. This statement was legally entrenched in 2014 when the CFA refused to give residency to a young man born to a DFW and had been living in Hong Kong for the entire 17 years of his life[6]. This decision which is a result of the fear that to rule otherwise would encourage DFW to give birth in Hong Kong in order for their children to reap the benefits of the system.
The true consequence of excluding these women and children from the system is to subject them to the poorest of living conditions. These rulings and regulations further limits the access of the already vulnerable to resources such as childcare, medical care, and education and places them in circumstances in which they are highly susceptible to exploitation and human trafficking.
[1] https://www.labour.gov.hk/eng/faq/cap57h_whole.htm
[2] http://hongkongofw.com/two-week-rule/
[3] http://world.time.com/2012/03/29/in-hong-kong-a-setback-for-domestic-worker-rights-2/
[4] http://time.com/4637218/hong-kong-stateless-children-domestic-workers/
[5] https://www.scmp.com/comment/letters/article/1783195/hong-kongs-undocumented-children-need-our-care-and-attention
[6] https://www.crin.org/en/home/rights/convention/articles/article-7-name-and-nationality