Legal Protections and Social Challenges for Migrant Domestic Workers

Examining systemic vulnerabilities and the fight for enhanced rights in Hong Kong’s immigration system

Migrant domestic workers (MDWs), comprising over 370,000 individuals in Hong Kong, occupy a critical yet legally precarious position. Governed by the Immigration Ordinance (Cap. 115) and Employment Ordinance (Cap. 57), their residency and labour rights are tethered to restrictive visa conditions, rendering them vulnerable to systemic exploitation. Despite their indispensable role in sustaining households and enabling economic productivity, MDWs face pervasive social stigmatisation, often framed as “disposable” labour.

During this legal knowledge training session we examine the intersection of legal frameworks and social inequities that perpetuate their marginalisation, with a focus on overstaying, labour exploitation, and the humanitarian consequences of Hong Kong’s immigration policies.

The legal training workshop was conducted by Harry Tang and Angus Maclean, in association with PathFinders Hong Kong to its ambassadors – the session covered various topics encompassing ‘overstaying’ and pregnancy discrimination against MDWs.

Legal definitions and social realities

The term “overstayer” denotes an individual remaining beyond their visa validity, a status frequently precipitated by employer malpractice such as passport retention or obstruction of visa renewals. Under Section 38 of the Immigration Ordinance, overstaying carries penalties of up to three years’ imprisonment and fines, though prosecutorial discretion often mitigates sentences for first-time offenders. Socially, overstayers endure ostracization, with employers and communities equating their status with criminality, despite many arising from coercion or necessity.

“Paper holders”: MDWs awaiting outcomes on non-refoulement claims — epitomise legal and social liminality. While Section 13ZA of the Immigration Ordinance grants temporary residency, it prohibits employment, exacerbating financial precarity. Socially, this status isolates MDWs from mainstream society, restricting access to healthcare, education, and communal support networks. The absence of statutory timelines for claim resolution under Section 37ZU prolongs uncertainty, leaving many in a state of psychological and economic suspension.

Pathways to overstaying and systemic inequities

The “two-week rule”, requiring MDWs to secure new employment within 14 days of contract termination, exemplifies systemic disregard for structural barriers. Those fleeing abuse or exploitation often lack the resources or social capital to meet this deadline, forcing them into overstaying. Financially, exorbitant recruitment fees—frequently exceeding HK$21,000 despite Cap. 57A’s 10% cap—trap MDWs in debt cycles, compelling informal work that violates Section 41 of the Immigration Ordinance.

Socially, cultural narratives blaming MDWs for “disloyalty” when seeking new employment deter potential employers, compounding legal risks. A 2023 survey by Mission for Migrant Workers revealed that 40% of MDWs experienced wage theft yet fear of deportation dissuades 60% from pursuing claims through the Labour Tribunal, perpetuating cycles of exploitation.

At the legal training, many PathFinders ambassadors were not aware of the “two-week rule” and other practical tips which were essential to ensuring that MDWs were not in contravention of immigration offences.

Legal and humanitarian consequences

Overstaying triggers deportation under Paragraph 2(c) of Schedule 1 to the Immigration Ordinance, with re-entry bans (2–5 years) severing familial and economic ties. For MDWs with dependent children, Section 19(1)(b) invalidates sponsorship rights, risking family separation even when children hold valid visas. Socially, deportation carries profound stigma in home countries, where failed migration narratives hinder reintegration and access to livelihood opportunities.

Mental health crises are endemic among overstayers, yet Hong Kong’s public health system offers negligible psychosocial support. A 2022 PathFinders study linked overstaying to elevated rates of depression and anxiety, exacerbated by isolation and lack of legal recourse.

Aiding and abetting

Section 38AA of the Immigration Ordinance criminalises acts of aiding overstayers, including temporary housing or financial assistance, with penalties mirroring those for overstaying. The Immigration Department treats such offences seriously and the maximum penalty for an overstay conviction is a fine of HK$50,000 and 3 years of imprisonment.

In the case of Nowodzelski v Director of Immigration [2018] 5 HKC 387, the Court of Appeal confirmed that even if the overstayer lacks the intention or knowledge of the wrongdoing, he/she is regarded as having contravened the condition of stay and may be prosecuted and/or removed from Hong Kong by the Immigration Department.

The Court does not accept ‘forgetfulness’ or a ‘mistake by others’, such as an employer, as a valid defence to an overstay charge. These can only be mitigating factors, which means the explanation of extenuating circumstances presented to the Court that might result in a lighter sentence imposed by the judge.

The Immigration Department can subsequently issue a ‘removal order’ against an overstayer. A removal order is generally made for people who have no right to be or remain in Hong Kong, or who are in breach of conditions of stay. The overstayers will normally be required to leave Hong Kong almost immediately after the conclusion of Court proceedings.

The Immigration Department can also issue a ‘deportation order’ against an overstayer. The overstayer will be deported from Hong Kong, and that he/she is not allowed to return to Hong Kong for a fixed period of time or permanently.

In practice, a removal order does not prohibit an overstayer from returning to Hong Kong. However, the overstayer may still encounter problems if he/she travels to Hong Kong in the future. Consequently, it is possible that a person may be refused entry to Hong Kong if the Immigration Department finds the visit of that person suspicious.

Case Studies: intersecting legal and social challenges

Pregnancy Discrimination: Termination following pregnancy disclosure contravenes the Sex Discrimination Ordinance (Cap. 480) and Section 15(1)(a) of the Employment Ordinance, yet visa cancellations often force MDWs into overstaying while pursuing claims. Socially, cultural taboos surrounding unmarried pregnancy exacerbate vulnerability, deterring victims from seeking help due to fears of community judgement.

Contract Substitution: Coercion into unauthorised roles (e.g., commercial cleaning) violates the Standard Employment Contract, yet enforcement remains lax. Legally, MDWs may qualify as trafficking victims under Section 129 of the Crimes Ordinance, but procedural delays in visa adjudications under Section 50 frequently culminate in inadvertent overstaying. Socially, such cases highlight employers’ exploitation of MDWs’ dependency on visa sponsorship.

At the legal training, PathFinders ambassadors conveyed their concerns surrounding pregnancy discrimination suffered by MDWs in Hong Kong – Harry and Angus engaged in a helpful Q&A with the ambassadors on the parameters required to be protected from pregnancy discrimination (unlawful termination) under Hong Kong law.

Bridging legal gaps and social divides

Organisations like PathFinders address systemic inequities through integrated legal-social programmes. PathFinders provides crisis shelters and legal representation for pregnant MDWs, while some other NGOs’ financial literacy initiatives educate workers on remittance laws and debt management. Legal advocacy has secured precedents such as Le Cong Manh v Director of Immigration (2023), which curbed indefinite detention of asylum seekers, and ongoing campaigns to extend the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) to cover live-in workers. Socially, NGOs combat racist attitudes and treatment through public awareness campaigns, reframing MDWs as contributors to Hong Kong’s social fabric rather than “burdens.”

Takeaways

Hong Kong’s treatment of MDWs underscores a dissonance between economic reliance on migrant labour and the denial of their legal and social rights. While statutory reforms — such as decoupling visas from specific employers or criminalising passport confiscation — are imperative, societal transformation is equally vital.

Public education to humanise MDWs, coupled with employer accountability mechanisms, could dismantle entrenched cycles of exploitation. Until Hong Kong aligns its immigration policies with its international human rights obligations, MDWs will remain ensnared in a system that extracts their labour while denying their dignity.