Lubiano #2 ~ private actors and positive obligations

In this second post on the live-in rule decision I look at the substance of Ms Lubiano’s fundamental rights argument: that by requiring persons admitted under the Foreign Domestic Helper scheme to live-in with their employers, the Director unacceptably or significantly increases the risk that they will be subject to fundamental rights abuses, and thus acts unlawfully.

The court held that he does not (§§81 to 95). I suggest that a closer look at the contours of the underlying human rights claim, may have led to a different result.

In my first post I looked at the prior question of whether FDH entrants could even access fundamental rights protection in Hong Kong in respect of the Director’s admission policy.

Increased risk of SFCL ~ the claim

The thrust of Ms Lubiano’s case was that the risk of FDH entrants being subjected to servitude or forced or compulsory labour (SFCL) was improperly increased by the live-in rule. Protection from SFCL is guaranteed at BOR 4(2) and (3). Broadly, it engages where work is involuntarily extracted by menace (FCL: §60(1)) or feels permanent because of force or coercion (servitude: §61).

SFCL rights are absolute: ZN v Secretary for Justice and Others [2017] 1 HKLRD 559, [2016] HKCFI 2179 at §§183 and 220. The prohibition on servitude is additionally non-derogable: BORO s 5(2)(c): ICCPR 4(2).

Ms Lubiano’s argument was that by requiring all (or almost all) FDH entrants to take up residence within the homes of their employers, the policy increased the risk of them suffering SFCL abuse, and that this aspect of the policy was thus unlawful on fundamental rights grounds (§§1(2) and 54 to 57). She relied in particular on a recent survey and report by local NGO Justice Centre, that found 17% of migrant domestic workers to be in situations of forced labour in Hong Kong (§§85 to 91).

Risk and agency

Two important elements of this argument distinguished it from an orthodox fundamental rights claim.

First, it was risk-based. Ms Lubiano was not herself subject to SFCL abuse. Her case was not that she had suffered SFCL as a result of the policy, but that generally, FDH entrants were more likely to so suffer SFCL abuse because of it. This was a systemic challenge (§1). For an illuminating discussion of how risk based claims should be approached, why it is not necessary to prove a breach in the instant case, and why the risk need not be as high as “on the balance of probabilities”, see Medical Justice [2010] EWHC 1925 (Admin) at §§ 33 to 42.

Secondly, private actors were the culprits. It was not Ms Lubiano’s case that the Director subjected FDH entrants to SFCL abuse. Rather, it was necessarily that FDH entrants’ employers were those actors from whom the risk arose. Those employers are in the overwhelming majority, of course, private actors, wholly disassociated from the Director and other arms of the state in respect of such treatment. Clearly, too: where an employer is also a government servant, she will likely act in a private capacity for which the Director is not responsible so far as she abuses her employee FDH entrant (the situation becomes more complicated where state resources are used by the abuser ~ but that does not matter for present purposes).

Positive obligations

Was this not a positive obligations case, then?

The Director was not infringing the SFCL rights ~ he was not meting out SFCL abuse. But so far as his policy increased the frequency of SFCL abuse, it may have failed to ensure practical and effective protection of individuals from it. Such failure is the essence of the positive obligations doctrine. One would have asked: are FDH entrants receiving real and effective protection? Or, had the Director “take[n] all reasonable measures within the scope of its powers to protect … person[s] from [SFCL abuse]?” (ZN at § 278).

Positive obligations do not simply require penal legislation to be enacted in respect of certain conduct. In the SFCL context the authorities additionally require that an effective administrative framework be in place, operational measures be taken to protect potential victims, and investigations be conducted into credible claims of abuse, regardless of the fact that the harm will of course be meted out in most circumstances private individuals (Rantsev [2010] ECHR 22 at §§286 and 288). Indeed this series of obligations includes a duty to ensure that “immigration rules” address SFCL concerns: ZN at §272 citing Rantsev at §284.

And it should not appear odd in this context that the Director was acting rather than omitting to act (in maintaining and enforcing the policy), or that the policy did not on its face concern SFCL. This second reason was identified by the court as it moved away from a positive obligations analysis (§56).

That is because positive obligations are concerned with effect. If it is unlawful to fail to take steps required to ensure effective fundamental rights protection, it is surely a fortiori unlawful to bring about that lack of protection by positive action, all other things being equal. Indeed in many of the ECtHR cases, positive action such as an investigation or enquiry had been undertaken, but the concern of the Strasbourg Court was that they had been conducted inadequately.

Nor, for the same reason, should the fact that the policy does not concern itself overtly with SFCL abuse, place it outside the reach of positive obligations. In Hong Kong the police owe positive fundamental rights obligations to take reasonable measures that enable lawful assemblies to take place peacefully: Leung Kwok Hung [2005] HKCFA 40 at §§22 to 24. If the Commissioner maintained an extended lunch break policy that resulted in there being insufficient officers on duty to deal with protests that fell on a Friday, he would not escape review for breach of the positive obligation because his policy did not overtly concern itself with assemblies. If the policy caused the protection-gap and it was reasonable for him to desist, he would be told to do so by the court.

The reason I think a positive obligations analysis assists is that the reasons given by the court for dismissing Ms Lubiano’s fundamental rights claim do not sit very comfortably with it. Had the positive obligations analysis not been discontinued at §56, the result of the case may have been different.

Increased risk ~ the court’s findings

As we know, the court found that the live-in rule did not significantly or unacceptably increase the risk of SFCL abuse: §§81 to 95. The court’s reasoning falls across three themes, namely choice, causation and existing protection:

Choice. FDH entrants choose to enter Hong Kong under the FDH scheme and retain a legal right to terminate their employment in the event of dissatisfaction. They may give one month’s notice (or pay in lieu) and terminate their contracts at any time: §§81(1) and (2).

Causation. Economic duress so far as it causes an entrant to remain in employment is not attributable to the live-in rule: §81(1). Nor would any SFCL abuse that an individual might suffer be attributable to the live in rule: §81(2). Such abuse might also occur outside of the residence, and in the context of a live-out employee, too, and its real cause is therefore the conduct of the employer, not the live-in rule: §§82 and 83(2). The Justice Centre report had not asked whether it was the live-in rule that was responsible for the forced labour it found to be present: §91(1). Nor were the indicators that Justice Centre used to identify forced labour, themselves attributable to the live-in rule: §§91(3) to (5).

Existing protection. Employers are required to provide suitable accommodation under the policy: §83(1). Civil remedies are available in the event of abuse (§94(1)) as is criminal redress (§§82 and 94(2)). Educational programs exist as do diplomatic channels of communication: §§94(3) and (4).

Increased risk ~ the court’s findings vis à vis positive obligations

One sees quite quickly that the first two themes do not sit well with a positive obligation model.

Choice. It is probably quite correct that the majority of FDH entrants provide consent to the Director, to admission to Hong Kong under the terms of the FDH scheme. But that is not to say that they consent to subsequent SFCL abuse at the hands of their employer. SFCL abuse will in almost all cases arise after a person has entered the jurisdiction and at the hands of the employer (or a family member).

The SFCL question is answered by the circumstances of employment, and not the legal terms of entry to the jurisdiction. Asking whether entrants consent to the live-in rule does not really tell us whether its imposition increases the risk of SFCL abuse. The risk that we are concerned with arises after entry and at the hands of different agents.

Just in case the point were in doubt, there is English authority to the effect that a person can arrive (to England) voluntarily and subsequently be subject to (the equivalent) ECHR 4 [pdf] abuse, there being no difference in principle between that scenario and one where the arrival is itself an ECHR 4 breach (i.e. an instance of forced labour): EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania [2013] UKUT 00313 (IAC) at Held (2).

Causation. The court’s point here was essentially that such SFCL abuse as does obtain is not attributable to the live-in rule. The “real cause” of such abuse was the employer herself, and not the Director (§82).

By contrast of course Ms Lubiano’s claim was systemic and risk based. It was not grounded in an evidential premise that SFCL abuse had been suffered by a particular person (although the Justice Centre report suggests this strongly to be the case), but that it was more likely that such abuse would be suffered given the fact that all employees under the FDH scheme had to live-in. Taking steps to prevent the incidence of SFCL abuse between private individuals is a key aspect of the positive obligations that arise in this context.

Thus asking who is first hand responsible for such SFCL abuse as does occur is really neither here nor there. It will always be a private actor. And the positive obligations doctrine not only admits of but is premised on circumstances where private actors cause the harm, the risk of which the public authority nevertheless has to guard against. The questions under the positive obligations model were insteade first, whether the policy increases the risk of SFCL abuse, and second, whether it was reasonable for the Director to take steps (i.e. change his policy) to guard against that: ZN at §278.

Those questions were not asked, though the court interestingly accepted that the opportunity for such abuse to be meted out was increased by the rule (§82). This simply must be the case. Threats can be made wholly in private. A worker is less likely to have colleagues of her station. Access to assistance can be more easily limited and restricted. It is easier to retain travel documents. Moreover in a domestic context it will be easier for an employer to convince authorities such as the police that nothing is awry, since witnesses are likely to be restricted to the employer’s family. This is not to say that employers are per se nefarious. But those who are nefarious, will find it easier with the benefit of a live-in employee.

Had the court asked these questions it seems to me that the result may have been different, given Justice Centre’s evidence that 17% of FDH entrants were likely living in situations of force labour. Much would have turned, no doubt, on the third theme of the reasoning: whether the existing protection was sufficient to guard against that risk. Suffice to say for present purposes that the protection referred to was largely concerned with circumstances after abuse has occurred ~ criminal and civil proceedings ~ neither of which to my mind adequately answer the question of whether sufficient preventative measures have been taken.

The answer from Canada

It may be that recent English cases were responsible for the way in which the court dealt with the case.

The doctrine of “significantly or unacceptably increased risk” has no current footing in local case law. The court referred to Munjaz v Mersey Care NHS Trust [2006] 2 AC 148, [2005] UKHL 58, a case that tested a high security psychiatric hospital’s policy on patient seclusion against the requirements of ECHR 3 regarding torture and ill treatment. It was accepted by Lords Bingham and Hope that the policy could not, consistently with ECHR 3, “significantly” increase the risk of an ECHR 3 violation. On the facts however the regular review of the effect of the seclusion on patients’ health meant that the policy did not so increase risk, and the policy was thus lawful: §§29 and 80 to 81.

The doctrine was picked up in  Suppiah [2011] EWHC 2 (Admin), where it was said in the context of administrative detention that it was “clear” that a policy that “g[ave] rise to an unacceptable risk of unlawful decision-making [wa]s itself an unlawful policy.”: §137. And in MK [2012] EWHC 1896 (Admin), Mr Justice Foskett agreed that the risk doctrine represented the law, citing Munjaz and Suppiah.

Importantly, however, in each of those cases it was the state that was directly responsible for the harm or rights violation contended for. In Munjaz of course it was the public hospital’s policy, and in Suppiah and MK it was the Secretary of State’s policies regarding the treatment of refugees. In each, as a result, too, the question of causation is not expressly dealt with.

The closest authority may be from Canada, where in Bedford [2013] 3 SCR 1101 the Supreme Court struck down three criminal laws that targeted sex work, on the basis that they unduly interfered with women’s security of person, guaranteed as a fundamental right under the Charter.

The analogies of Bedford to the present case are twofold. First, it was expressly concerned with the risks that the prohibitions exposed sex workers to ~ forcing them on to the streets, preventing them from hiring protection or drivers, and reducing opportunities for face to face communication with johns (§§59 to 72).

Second, the court expressly discussed the causation requirement, concluding that a “real” link had to be shown, but that this did not “require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant” (§§74 to 92). In other words, the fact that the harm would be meted out by johns in the circumstances that it did occur was not an answer itself to the question of whether the criminalisation nonetheless unacceptably increased the opportunity and thus risk of that happening. Public law was still responsible for private actors’ actions. Quite so.   

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