The Policing of Cross-Border Bodies and Births: Deconstructing the “gendered prison crisis” in Hong Kong

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prison

Author: Emily Ma

INTRODUCTION

Humanitarian crises and increased global human flow in the 21st century have increased xenophobia in the Global North, leading to governments using policing to control communities’ mobility. “Crimmigration” is a term used by scholars to describe this phenomenon—the intersection of the immigration and criminal-legal system that punishes and banishes populations of different race, class and ethnicity from the majority population.1 While cross-border migration has garnered international attention in Europe and North America, with varied responses such as governments strengthening national borders and civil society protesting against injustice done to undocumented immigrants, there is comparatively less literature on the nature of crimmigration in Asia.

As a popular destination for migrant workers from Southeast and South Asia, Hong Kong shrouds itself in its ethnic diversity, yet the state perpetuates violence against its migrant female populations through a legalized form of social and racial control. Recent incarceration patterns can illustrate this point. In spite of having a relatively low prison to population rate compared to other countries, Hong Kong has the highest percentage of women in prison in the world––20.1% as of 2019. 2 Non-locals make up 33% of Hong Kong’s prison population, an overwhelming number of whom are migrants imprisoned for breaching “conditions of stay,” such as overstaying their visa or pursuing work without an employment visa.3,4 I conceptualize this incarceration phenomenon as a “gendered prison crisis.”

In this paper, I adopt “structural violence” as a framework to understand how policies, including lack of labor and human rights legislation, inflict violence on vulnerable groups.5 Using this framework, I highlight the “gendered prison crisis” as one manifestation of “structural violence.” I further argue that crimmigration practices towards migrants –– which are motivated by xenophobic attitudes and exploit the vulnerabilities that arise from migrants’ racial/ethnic, gender, sexual and socio-economic identities –– create barriers to improved health. I discuss various social determinants of health, including work environment, access to sexual and reproductive healthcare, policy, and legislation. I select female migrant domestic workers (MDWs) as a case study to demonstrate the pervasive ways in which crimmigration impacts migrant workers’ health in Hong Kong, whose labor participation in childcare and elderly care have permitted space for a substantial proportion of local females in higher-earning jobs.6 I inform my analysis with academic literature, NGO surveys, as well as my working relationships with formerly incarcerated people, MDWs, and organizations that advocate for their welfare and legal rights. To dismantle the pillars of structural violence described in this paper, I suggest policy approaches to empower migrant populations, reduce reliance on the prison system, and in turn reduce health inequities.

DECONSTRUCTING CRIMMIGRATION

Policies that increase MDW’s health vulnerabilities

Hong Kong is a major destination for migrant domestic workers seeking better economic and life opportunities for themselves and their families. MDWs make up more than 4% of the general population, or about 37,000 people in the workforce.7,8 They are subject to labor laws which render them vulnerable to exploitation, such as the two-weeks rule and the live-in-rule, which requires MDWs to live in the household of their employers. As a result of the live-in-rule, MDWs face a heightened risk of labor trafficking, being overworked, and adverse labor and living conditions, as some employers withhold their wages and deprive them of adequate food.9 One of the most representative surveys on MDW’s labor experience conducted by Justice Center Hong Kong in 2016, a non-profit organization, confirms this. The survey reveals that 63.7% of MDWs work twelve or more hours daily and suffer sleep deprivation.10 The two-weeks rule requires all MDWs who fail to secure employment within two weeks after the termination of their employment contract to leave the city.11 If the MDW stays beyond two weeks without legitimate reasons, they may face imprisonment. The two-weeks rule was reported as a major cause of under-reporting workplace abuses and seeking redress, because filing a labor claim strips them of the right to work.12,13 This fear is compounded by concern that initiating a contract termination will be seen negatively in the eyes of potential future employers (“job-hopping”).

A 2013 systematic review found that live-in MDWs face a myriad of health issues associated with the aforementioned risk factors.14 The standard employment contract does not provide adequate safeguarding of employees’ rights, as it simply states: “The Employer shall provide the Helper with suitable and furnished accommodation” and “with reasonable privacy,” with only “made-do beds in the corridor with little privacy and sharing a room with an adult/teenager of the opposite sex” as examples of unsuitable accommodation.15 However, rules stipulated in the standard contract fail to translate into practice. A survey conducted by an NGO serving migrant workers in need, Mission for Migrant Workers, found that 1 in every 50 MDWs sleep in inhumane conditions, such as toilets, storage rooms, closet, and dressing rooms.16 Their recent 2020 report found 51% of surveyed MDWs do not have a private room.17 Some MDWs had to sleep on the floor or extremely close to the ceiling, or in the presence of an adult of the opposite sex, which has been documented to negatively impact their mental and physical wellbeing. Academic studies report similar findings: a cross-sectional study, Chung & Mark (2020), employing multistage cluster random sampling of 2,017 live-in female MDWs, found that MDWs scored lower on self-rated physical and mental health than the general adult population in Hong Kong.12 Study authors found that discrimination by employers, experiencing physical and verbal abuse, and the lack of a private room are associated with poorer general self-reported health. These findings demonstrate that the ambiguity of labor contracts and the lack of compliance to the contracts lead to MDWs’ poor physical and mental health outcomes.

The lack of territory-wide forced labor or human trafficking legislations and protections allow these phenomena to occur. Common cases of human trafficking involve employers who withhold wages, in addition to recruitment agencies who charge exorbitant “processing fees” and create fake employment contracts for travel. Justice Center’s study reflects a prevalence of 17% being in forced labor based on meeting the criteria of at least one of three dimensions of forced labor: unfree recruitment, work and life under duress, or impossibility of living.10 The study highlighted that a significant risk factor for forced labor is being in debt, especially debt levels equal to or more than 30% of their annual income. Debt owed to employment agencies exacerbate MDWs’ pre-existing financial stress as they pay the agencies alleged processing fees for false contracts.18,19,20 A survey conducted in 2011 by APWLD found that MDWs paid these processing fees through wage deductions that far exceeded the legal amount stipulated by the government, because many MDWs owe money to secondary parties—i.e. loan agents, banks, finance or credit companies—rather than recruitment agencies, allowing these agencies to circumvent the law.21 Under the current legal system, perpetrators of forced labor or human trafficking can only be charged for offenses that violate civil laws such as the Common Law, including charges such as personal injuries, breach of contract, and forcing victims to conditions of forced labor or trafficking.22 However, human trafficking cannot be characterised by piece-meal legislation. Rather, human trafficking is also a phenomenon and a process, not only including the act itself, but also the means and the purpose of the act. A lawyer describes the current investigative practice as “you find what you look for.”23 Without a human trafficking charge, police are largely unable to identify human trafficking, leaving victims inadequately protected, and in turn, prosecuted. MDWs who violate the law under coercion, or are being trafficked for the purpose of criminal activity, will be subject to unfair trial. Workers pursuing forms of unauthorised work under the influence of their employers are arrested and prosecuted. For instance, an employer involved a MDW in a prostitution ring when the MDW was unaware of its illegality, and the MDW was sent to prison.24,25

Precarious access to sexual and reproductive health services

Sexual and reproductive health (SRH) literacy of MDWs is low, but this has not been targeted for intervention by the government. In contrast to other Southeast Asian countries that prohibit pregnancy for MDWs, such as Singapore,26 Hong Kong permits pregnancy and additionally affords MDWs rights including maternity leave, subsidised reproductive health services, and the permission to marry Hong Kong residents. However, this positions MDWs in a vulnerable state as the greater reproductive freedom they enjoy is not coupled with adequate SRH knowledge. Since ensuring universal access to SRH is one of the targets of the United Nations Sustainable Development Goals (SDGs), the government should begin to prioritise SRH coverage amongst marginalised and vulnerable populations.27 Current grassroots efforts in SRH promotion, such as outreach conducted by a charitable foundation called PathFinders, are limited and fragmented in scale.28 A qualitative study in Malaysia revealed the importance of employers’ investment in providing the worker with SRH education; however, employers were frequently opposed because they associated SRH education with promoting promiscuity.29 Another study in Australia on migrants’ perspectives of preconception health similarly demonstrated the importance of understanding social nuances that prevent migrants’ discussions on reproductive health with healthcare providers, suggesting that culturally-sensitive approaches and provider training must be adopted to bring SRH to scale.30 Although there is no academic study on the impacts of SRH interventions for MDWs in Hong Kong given the scarcity of such interventions, a study on the impact of SRH interventions for female migrants in China showed positive outcomes, including high contraceptive prevalence and reduction in unintended pregnancy. This suggests a promising impact of targeted interventions to address unmet SRH need,31 and the government should provide more grant funding to family planning NGOs in order to enhance minority communities’ access to SRH.32

Generally, hospitals do not effectively coordinate with legal and social care sectors, collaborations which are necessary to assist financially vulnerable groups in accessing critical services. This results in potentially risky situations for expectant former-MDWs. For example, a former-MDW who was pre-maturely terminated and overstayed her visa was offered a visitor visa. With a visitor visa, she was no longer entitled to subsidized health services in line with those granted to her local resident counterparts, including delivery services, pre-natal care, and post-natal care.33,34 It is not uncommon, therefore, for an expectant former MDW to visit the emergency room at a hospital for an emergency delivery (a highly risky behavior), and deal with outstanding bills later. Former-MDWs can apply for a one-off medical fee waiver, but the processing time is long, and the fetus cannot wait.35 To illustrate another instance when one’s immigration status bars access to necessary maternal health services, one can examine a case of a former-MDW who had booked a Caesarian section at a public hospital. However, because her contract was terminated at a late stage in her pregnancy, the hospital simply cancelled her booking.36 Some medical providers also fail to promptly connect their patients to social assistance. One MDW I’ve accompanied to court was sent there for outstanding medical fees when their medical fee waivers were still in process. This payment-recovery process is highly costly: administrative charges and legal costs add up per periods of time that the fees go unpaid, reflecting the inefficiencies caused by an underdeveloped primary care system.35,37

Incarceration of MDWs

For MDWs who overstay their visas, there is little mercy under the rule of law. For example, an eight-months pregnant Indonesian former-MDW whom I accompanied to court was to be married shortly to a local Hong Kong permanent resident. This would allow her to apply for a dependent visa and later be eligible for permanent residency. However, she had overstayed her visa for a few months by that time, so she surrendered to Immigration Department for her overstay. Her duty lawyer assigned by the Legal Aid Department, a department that provides free and subsidised legal representation to applicants with financial need,38 represented her in court for less than five minutes, and the former-MDW was sentenced to two months in prison. She later gave birth one month into her time behind bars.

The lack of community alternatives to the incarceration of migrant workers for immigration offences leads to an inefficient use of public resources. Since there is little to no academic literature on the incarceration of MDWs, the incarceration of migrant sex workers from Mainland China can be used to illustrate the ineffectiveness of imprisonment. Laidler, in a mixed-methods study, interviewed 58 incarcerated migrant foreign sex (FSWs) workers from Mainland China. They spent an average length of 6.25 months in prison, and many of them did not understand the grounds of their sentence. Some even misunderstood their sentence when they were sentenced. Therefore, the argument that longer periods of imprisonment enhance deterrence —based on deterrence theory, necessarily prefaced on the knowledge of the offence and its consequences—is not supported here.39,40 In 2004, the costs of keeping women in prison due to breaching condition of stay alone (not other immigration offenses) was tabulated by Laidler at about $23 million USD. Comparing this maintenance cost—as well as the time, administrative, and legal costs associated with prosecution—against the limited deterrent effect of the penal system, one must re-examine the legitimacy of the carceral state in controlling migrant and racialized bodies.

Currently, many former-MDW who have given birth out of wedlock or as single women apply to become asylum-seekers to prolong their stay. During this period of time, they are not allowed to pursue any work, but rely on government in-kind transfers to survive. To address the backlog of asylum claims, the government resorts to detention and expediting the deportation of asylum claimants—a saliant example of crimmigration. Professor Sea-Ling Cheng at Chinese University of Hong Kong presented that since 2017, the Hong Kong government has hired more immigration officials, judges, and duty lawyers to process refugee claims.41,42 Recently, a new immigration bill threatens to expedite the deportation of asylum-seekers, which will also inevitably impact former-MDWs who are seeking asylum in the city. Taken into effect on August 1, 2021, the Bill authorises the immigration department to put anyone they charge for “unauthorised entry” into a newly built detention centre. It also provides immigration the power to detain asylum-seekers for a “reasonable” period of time, so asylum claimants may be detained for a long period of time before their cases are being heard.43 The welfare of asylum-seeker parents and children are at stake, as previous detainees’ experiences were unpleasant and abusive.44 The Government pushes forth with the Bill despite evidence for increased costs of detention.45

Systemic exclusion during COVID-19

COVID-19 exacerbated MDWs’ pre-existing health vulnerabilities, suggested by increasing rates of reported labor exploitation and restrictions on launching legal and financial redress. During COVID-19, live-in MDWs increasingly reported instances of not being given their weekly one-day-off due to employers’ fears of MDWs contracting the virus, claims largely underscored by employers’ racist attitudes rather than legitimate public health concerns. In one study, a MDW expressed her experience of prejudice as “the virus is only active on Sundays,” which is usually their day off.46 Correspondingly, 31% of MDWs surveyed by HelperChoice reported an increase in workload and 25% reported longer working hours, while the government froze the Minimum Allowable Salary which increases every year according to the Consumer Price Index (CPI).47 Guidelines to clean the house more often with strong chemicals have been reported to make MDWs uncomfortable. Coupled with financial difficulties experienced by their families in their home countries due to COVID-19 lockdowns, MDWs’ physical, mental, and social well-being are in even greater jeopardy. The fear of losing work reduces their ability to launch legal action against employers.

The government’s inadequate measures to protect unemployed MDWs against COVID-19, and its reliance on policing to reinforce the illusion of “public health safety”, reflect structural racism. According to a survey conducted by HelperChoice, there is a 6% increase in MDWs seeking a new job upon termination of their contract. Therefore, many resorted to staying in overcrowded and poorly ventilated boarding houses in between changing employers or waiting to fly home.45 Inevitably, the boarding house was one of the sites of a local COVID-19 outbreak.48 But rather than enlisting the expertise of health workers, police were deployed in investigating the sources of transmission and enforcing quarantining measures, and the MDW community was placed in greater scrutiny.49 Since August 2020, government departments have relied on the police to deliver public health messages in MDWs’ popular gathering spaces on their day-off, another strategy to control MDWs’ mobility. Police showed up with banners and long rulers to warn them against breaching social distancing.50,51

The government amplified its discriminatory policies by excluding MDWs from in-kind benefits and its calls to mandate testing and vaccination. In June 2020, the “Cash Payout Scheme” provided each Hong Kong permanent resident with $10,000 HKD ($1, 284 USD).52 Furthermore, in 2021, the government is disbursing electronic vouchers to stimulate the economy.53 For both schemes, MDWs are ineligible. In May 2021, MDWs were twice forced to undergo mandatory testing after a MDW was discovered with a mutant strain of COVID-19, enforcing a biased and unfounded assumption that all MDWs in the entire territory mingle together.54 Furthermore, the government required that MDWs be vaccinated in order to renew their contract, but did not require the same for their employers. This directive received backfire from the MDW community, civil society, overseas authorities, and international press—resulting in the directive’s withdrawal within two weeks of its announcement.55 However, this incident is only “the tip of the iceberg”, prompting the need to imagine alternatives.

IMAGINING ALTERNATIVES

Rather than increased investments in the criminal-legal system, I suggest re-investment of resources into the following areas:

  1. Strengthen labor rights protections of migrant workers: The government should require employers to provide a workplace that meets the criteria for a “safe and healthy working environment”, as stated in the International Labor Rights Convention No. 189 and the SDG Goal 8.8.56,57 The Standard Employment Contracts’ Schedule of Accommodation and Domestic Duties should elaborate on prohibited unacceptable accommodations such as toilets and balconies. The government should adopt a law prohibiting human trafficking, taking reference to UK’s Modern Slavery Act, in addition to increasing resources and training for police and other frontline agents to screen trafficking victims. The government should also increase funding to NGOs to conduct financial education and prevent migrant workers from accumulating debt.
  2. Strengthen the delivery of preventative healthcare, reproductive healthcare, and family planning services to the migrant worker community: The government should mandate the Labor Department to specifically list SRH services as an item to be included in the standard employment contract that employers must cover for their employees, and prioritize SRH literacy through funding more community-based organizations and training medical providers in delivering culturally-sensitive SRH services and education.
  3. Immigration system reform: The two-weeks rule should be abolished to reduce the under-reporting of labor rights violations and MDWs overstaying and becoming asylum-seekers as a result of this rule. Migrant workers who overstay due to ongoing legal claims should be granted the right to work. Rather than detaining in order to deport asylum claimants with weaker claims, such as claims made by former-MDWs, the government should provide alternatives and fund various community-based organizations to provide pre- and post-repatriation support.
  4. Sentencing policy: Sentencing policies affecting individuals charged with non-violent immigration offences should acknowledge the limited deterrent effects of long sentences, and the collateral social, economic, and health consequences that sentencing has on women, their families, and broader society. Community-based alternatives to imprisonment, particularly of expectant and caregiving mothers, should be explored.
  5. Promote minority health research: Crucial data that is not currently publicly accessible, such as findings on the ethnicity of medical service users, should be made available. Researchers and implementation scientists should enhance health intervention development and understand barriers and facilitators to promoting health behavior changes, particularly on SRH, and migrant workers’ access to primary care. More public health research should involve and center the experiences of racial and ethnic minorities.

CONCLUSION

In Hong Kong, where immigration status defines who is “welcomed” or “unwelcomed”, the state’s power is enlarged by the disproportionate criminalization of those with darker skin and working low-paying jobs. This paper examines various ways in which crimmigration operates through labor, sentencing, and healthcare policies that contribute to the root causes of the city’s unique “gendered prison crisis.” The public and the state hold a binary view of migrants—either they are “real” refugees who deserve protection, or they are economic migrants who “misuse” the system. This binary perspective is woefully inadequate in capturing the diversity of the migrant experience, in protecting their rights to more promising futures for themselves and their families, and in permitting them to become productive member of Hong Kong society. Relying on the penal system to curb cross-border human flow, rather than mitigating the intersectional vulnerabilities that underlie migrants’ pursuit of “unauthorized work,” is not a sustainable nor ethical solution. Multi-sectoral action, through domains additional to civil society, has the responsibility to address the various social determinants of health for migrant populations in Hong Kong, with the goal of sculpting Hong Kong into a more welcoming society.

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