FAQ

Topics

Why should I be concerned?
    1. As a Hong Kong resident, why should I be concerned with migrant women who become pregnant while living here?
      PathFinders core belief is that every child born in Hong Kong should have a fair start in life no matter who their mother is.We in Hong Kong have benefited from migrant women leaving their poor, rural communities to seek employment in our city. They live in our homes, help raise our children, look after our elderly, and enable us to have active and demanding work and social lives. Even so, migrant women are too often unlawfully terminated when they become pregnant and literally sent to the street without fair compensation. We should provide these women, and their children, with the basic rights and protection they are entitled.
    1. Why do migrant women with children need assistance?
      Once a foreign domestic helper’s employment contract is terminated, they have two weeks before they overstay in Hong Kong. During these two weeks, they will need to make arrangements and significant decisions regarding their life and the well-being of their unborn child. To exacerbate the situation, they face additional challenges such discrimination, lack of medical care, immigration and legal issues, and lack of social support.Facing fear and failure, these stunned mothers-to-be often are unaware of their options, often resulting in poor decisions. Fearful of returning home with an out-of-wedlock and mixed race child, the mothers often go into hiding, re-emerging only when they are desperately in need of help. At this critical time, these mothers need information and support to make informed decisions about their future and the welfare of their children.
  1. Why do migrant women become pregnant?
    Migrant women become pregnant for a variety of reasons, many of which are common to all cultures including other residents who live in Hong Kong, including:

    • Many migrant women are naïve or afraid to receive sexual education. As a result, they have incorrect perceptions of how to get pregnant and how to prevent it.
    • They are unable to defend themselves against men who pressure them into engaging in unprotected sex.
      Sometimes contraceptives fail.
    • They reach a point in life where they would like to start a family with their husband or boyfriend.
      Some falsely believe that their pregnancy will enable them to stay in Hong Kong.
    • Regardless of the reason for their pregnancy, PathFinders’ mission is to ensure that children resulting from these pregnancies have a fair start in life.
Maternity Employment Rights
    1. Are migrant women legally allowed to become pregnant while working in Hong Kong?
      Yes. As with other Hong Kong residents and visitors, foreign domestic helpers can become pregnant anytime she chooses to be – this is essentially a human right. However it is a legal offence for an employer to terminate a migrant woman’s employment because she is pregnant.
    1. Are employers legally allowed to terminate a foreign domestic helper because they are pregnant?
      No. An employer cannot dismiss the helper except due to the helper’s actual and serious misconduct. An employer dismissing a pregnant foreign domestic helper without the helper’s serious misconduct is liable to prosecution and on conviction, a fine of HK$100,000.
    1. Are foreign domestic helpers entitled to paid maternity leave?
      Yes. A foreign domestic helper is entitled to 10 weeks of paid maternity leave if:

      • She has been employed for not less than 40 weeks immediately before the commencement of scheduled maternity leave;
      • She has given notice of pregnancy confirmed by a medical certificate to her employer; and
      • She has produced a medical certificate specifying the expected date of confinement if required by the employer.
    1. Are foreign domestic helpers entitled to compensation if they are dismissed due to their pregnancy?
      If a pregnant helper is dismissed without the helper’s serious misconduct, the employer is required to pay:

      • wages in lieu of notice of 1 month salary;
      • annual leave entitlement;
      • 1 month salary as compensation; and
      • if they are eligible, 10 weeks maternity leave compensation (at 4/5 of their daily wages)

      A helper is entitled to maternity compensation if

      • She has been employed for not less than 40 weeks before the commencement of maternity leave; and
      • She has given notice of pregnancy confirmed by a medical certificate to her employer.
  1. What should a legally employed migrant woman do if she becomes pregnant?
    When an employed migrant woman becomes pregnant she can consider the following 3 options:

    • Continue with her pregnancy and plan to give birth in Hong Kong or in her home country during her legally entitled maternity leave and determine a suitable childcare plan.  Childcare options include:
      1. keeping the child at her place of employment (if her employer agrees with this arrangement),
      2. return to her home country with her child, or
      3. have her child taken care of by family members while she continues her current employment or seeks new employment in Hong Kong.
    • Giving her child a new family and home through adoption in Hong Kong.
    • Termination of her pregnancy through consultation with a Family Planning Association or public or private hospital.
The Immigration Department
    1. Why do migrant women overstay their visas?
      Migrant women overstay their Hong Kong working visas for several reasons:

      • Many are financially desperate. As the family breadwinners, working illegally in Hong Kong presents a better option than returning home to limited employment opportunities.
      • Some are owed money by their ex-employers. This can include money for a ticket home, rendering them unable to leave Hong Kong.  They do not realize that they can claim this money back through lodging a claim with the Labor Tribunal.
      • They fear harassment from home country loan companies if they return prior to repaying these loans which normally occurs within the first 7 to 12 months of a contract. It commonly costs around HK$20,000, yet can be as high as HK$30,000, in employment agency fees to enter Hong Kong for the first time to complete a 2-year contract. Consequently, most migrant women owe large debts to agencies back home for the first 7 to 12 months of their contracts.
      • Some hide here to protect themselves from abusive family situations at home.
      • Some fear being ostracized at home because they have become pregnant out-of -wedlock and borne mixed-race children.
      • Some receive incorrect advice from boyfriends and friends that they can overstay their visas for as long as they like by obtaining a “recognizance visa” and/ or submitting a claim for asylum under the United Nations High Commission for Refugees or the international Convention Against Torture. Many of their boyfriends are also asylum seekers and/ or torture claimants.
    1. Does PathFinders work with migrants who are not in compliance with Hong Kong laws?
      PathFinders works with overstaying women and their children to surrender to the Immigration Department and to resolve outstanding immigration and legal issues. In doing so, we ensure the women we serve comply with the laws of Hong Kong and that they and their children and documented and are recognized by the Hong Kong government.
    1. What happens when a migrant who overstays their visa surrenders to the Immigration Department?
      Upon surrendering, the Immigration Department will investigate the overstayer’s circumstances to determine if they will charge the overstayer with a breach of immigration contract. Depending on the circumstances, this investigation may last up to several months. The overstayer may be detained at any point during the Department’s investigation, or may alternatively be allowed to live within the community. Most of the migrant mothers and children that PathFinders serves are released into the community after they surrender.Upon surrender, the Immigration Department enters into a Recognizance contract with the overstayer, similar to a bail contract with a court. The individual will then receive a document called a “Recognizance Paper” which includes the individual’s name, address, photo, immigration reporting requirements and amount payable in the event that they do not comply with the contract terms. Although this Recognizance Paper is not considered to be official identity documentation, it is commonly used as such.
  1. Why do migrant women make Torture Claims?
    Prior to approaching PathFinders for assistance, many of the migrant mothers who have given birth to mixed-race children out of wedlock in Hong Kong, have made CAT claims to the Hong Kong Immigration Department (CAT = Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is an international human rights instrument under the review of the United Nations, that aims to prevent torture around the world). Mother’s do this for various reasons including that they are afraid to return home with a mixed-race child who is out of wedlock, particularly to Indonesia, where it is common for communities to ostracize mothers and their babies who are in these circumstances. Further, while in Hong Kong a common benefit of making a CAT claim is that all claimants, whilst their claims are under review, can access free medical treatment at public hospitals in Hong Kong, and can apply to International Social Services for basic rental and food support. This is particularly useful for a homeless, jobless, pregnant mother-to-be. Further, CAT claimants will not be deported while their CAT claim is being reviewed, but nor can they ever work again in Hong Kong.Of the 4,400 CAT claims received by the Immigration Department between 2010 and 2012, some 1,197 (27%) were from Indonesians and 426 (10%) were from the Philippines [Note 1]. Most of these claimants likely originally entered Hong Kong as Foreign Domestic Helpers.At PathFinders, when we meet a new beneficiary who has lodged a CAT claim we ensure that she understands the purpose of the CAT and we also sensitively counsel with the mother to understand the basis of her CAT claim. Knowing that her claim will likely not be successful, we encourage mothers to withdraw their claims and help them to plan to return home to a place that they feel safe and supported. For some, this means reuniting with family in their home country, and for others who feel their family will not accept them and their out of wedlock mixed-race child, they start afresh in a new community either with their child, or after their child has been adopted in Hong Kong. In addition to helping arrange their travel, identity documentation and counseling to prepare them to reintegrate, we also help support them financially for their first critical months at home and in doing so, we are able to monitor the reactions of their family and wider community.Note 1: Statistics obtained via Vision First.
Relevant Links
Labour Department
NGOS that specialize in migrant women employment issues