By Arthur Chan and Jasmine Kwong

Hong Kong, 24 November 2021: The Immigration Department appears to be taking a stronger stance over its requirement that foreign domestic helpers should have a clear criminal record in order to obtain a work visa. However, this toughening of attitude gives rise to fresh questions about how future applications will be dealt with.

The topic has been thrust into the spotlight by a Court of First Instance ruling which held that the Director of Immigration was within his rights to refuse an Indonesian helper’s visa renewal on the grounds that she had been convicted of theft some months earlier. The court dismissed her application to seek a judicial review over the decision.

Case background

The court heard the woman was first granted a foreign domestic helper’s (FDH) visa to work in Hong Kong in 2017. In January this year she applied to the Immigration Department for a renewal of her two-year visa so she could continue working for her female employer.

In processing her application, officers noted she had been convicted of theft in September 2020 for which she was fined HK$800. Her employer wrote to the Director of Immigration in support of the application, saying the helper was familiar her (the employer’s) timetable, nature and food requirements, and that she did not have time to teach a new helper.

In a letter dated 5 March 2021, the Director of Immigration refused the visa renewal, stating: “Having considered all circumstances of your case, we regret to inform you that you have not met eligibility criteria given in the ‘Guidebook for Employment of Domestic Helpers from Aboard’.”

An internal memo the same day highlighted the theft conviction which was “undoubtedly a known adverse record to detriment of the helper”. The memo also stated the helper was mainly hired to perform household chores so was not irreplaceable and there were no compassionate grounds to justify special consideration.

The employer and helper wrote a joint letter asking the Immigration Department to reconsider. They stated her conviction was “very insignificant” and would be considered spent in two years, and that she had shown remorse. The letter also stated the employer had some medical conditions which rendered her vulnerable in the pandemic and that the helper had developed a bond with the family.

But the Director of Immigration maintained his decision, citing again the eligibility criteria in the FDH guidebook. Another internal memo stated the case did not justify exceptional consideration and that the applicant did not fulfil the requirement of clear criminal record. It said there was no reason her service could not be replaced by another FDH.

Judgment

In his ruling, the Honourable Mr Justice Russell Coleman noted the helper’s main complaints were that her conviction was minor, so should not warrant a rejection of her FDH visa application, and that the circumstances of the employer were not sufficiently considered. But the judge said the Director of Immigration was within his rights to refuse the application and that the internal memos showed he had considered the employer’s circumstances.

“Given that the Director had adopted the requirement of clear criminal record and the requirement of no known record to the applicant’s detriment as ‘eligibility criteria’ for issuance of FDH visas, he was entitled to take the view that failure to meet those criteria had rendered the applicant ineligible to obtain a FDH visa, that she fell outside the prevailing FDH policies,” wrote Mr Justice Coleman.

“It is not reasonably arguable that the Director, in rejecting the applicant’s application on the ground of her failure to meet the eligibility criteria, was acting unlawfully or irrationally in the public law sense.”

Comment

From a legal standpoint, nothing has changed, the Director of Immigration continues to have discretion in the granting of FDH visas. In the past, minor convictions such as theft have been overlooked or disregarded. From this case, however, it appears the Director has strengthened scrutiny and requires helpers to hold a clean criminal record.

But  how is the discretion exercised? For example, would a non-recordable offence such as careless driving count against a helper who drives as part of their duties? Further, there remains uncertainty over spent convictions, since the objective of these is to allow an offender to put a past mistake behind them. In the highlighted case, can the helper re-apply once her conviction is spent?

There is also concern that such stringent rules may be counterproductive. Helpers with a minor conviction may be tempted to overstay in Hong Kong if they think it is unlikely their visa will be renewed. Going forward, it remains to be seen how strictly the Immigration Department will implement its guidelines.

Arthur Chan has been an Associate with BC&C since 2018. He deals with Criminal Matters while also covering Civil and Commercial Litigation, and handles cases involving personal injury and employment issues. He can be contacted at Arthur@boasecohencollins.com.

Jasmine Kwong completed her law degree and Postgraduate Certificate in Laws at City University of Hong Kong – having also attended summer courses at the University of Oxford and Monash University – and joined BC&C as a Trainee Solicitor in 2021. She can be contacted at jasmine@boasecohencollins.com.