OLN

Test Blog

Relocating to France with Your Domestic Helper:  How to Obtain a Visa

by

Whether you plan to take your domestic helper on holiday to France or to relocate permanently, securing the correct visa for her is of the essence. Indeed, unlike a few Southeast Asian countries where your domestic helper is allowed to join you for a short tourist stay, to be authorized to work in France, your domestic helper will need to apply for one of the following specific visas:

  • The short-stay visa has a maximum validity period of 180 days with a consecutive presence (or not) equal to at least 90 days; or
  • The long-stay visa is equivalent to a 12-month residence permit.
1. The short-stay visa:

For this type of visa application, the French consulate in Hong Kong will be your first point of contact.

An application for a French visa for your domestic helper has to be submitted via the official visa website for France (https://france-visas.gouv.fr). More specifically, domestic helpers traveling with their employers must select the visa category « business » (under « your plans » in the visa wizard), then « employed in the service of a foreign or French national » as the main purpose of stay. A tourist visa is not applicable, even for a very short stay because the applicant will be working in France. Therefore, it is important to make sure that this employment is lawful.

It is recommended to file the application more than three months before traveling. Even though you wish to assist your domestic helper in the process of preparing the file and the materials for the visa application, the appointment at the French consulate must be booked under the applicant’s name only (the domestic helper), and failure to do so will result in the applicant not being allowed into the Consulate appointment. As the employer, you are not allowed to be present during the interview.

Once again, when in France, the employer has to comply with French labour laws which are very different from Hong Kong. Among other things, you have to make sure that her salary will be aligned with the French minimum wage and that she will not work more than the maximum working hours as per French law. In addition, you will have to pay the social security contributions arising from this employment as undertook in a “sworn affidavit” that you will have to sign for the visa to be granted.

2. The long-stay visa:

Obtaining a long-stay visa  is a longer process and the procedure is more complex as this will allow your domestic helper to live in France for one year and she can thereafter then  apply for a residence permit.

The employer has to demonstrate that he intends to bring a foreign worker to France because he cannot find any suitable candidate in France to meet the criteria of the position. This is why he first has to conduct a search for candidates for the position sought (i.e. a domestic worker) in the city where he plans to live, describing the qualities required (for example, someone who speaks English fluently, who is able to look after several children, who can do the housework…). This search for a candidate is usually carried out through “Pôle emploi” and takes at least 3 weeks. Once the search is completed, the employer must be able to prove that a candidate, with the required qualities, has not been found (which means that nobody applied for the job or that he conducted interviews but did not find any suitable applicant). “Pôle emploi” will then provide him with a statement of unsuccessful search.

Once this document is obtained, the employer will have to apply for a foreign worker permit on the official portal of the “Ministère de l’Intérieur” (https://administration-etrangers-en-france.interieur.gouv.fr). This second step generally takes several months and involves providing information about the employer (working contract, resources…), the employee andthe qualifications of the job. If the “Ministère de l’Intérieur” allows the employment of the foreign worker, they will grant the employer a document named “Autorisation de travail (resident hors de France)” for the domestic helper.

After the two steps described above have been successfully completed, an interview will have to be conducted for the domestic helper at the French consulate in Hong Kong to finalize the visa application.

It has to be noted that once the visa has been obtained, it is compulsory for the domestic helper to activate her visa with the “Office Français de l’Immigration et de l’Intégration (OFII)” within three months of her arrival in France. She will also have to undergo a medical examination and sign a “contrat d’intégration républicaine” in which she will undertake to follow training courses to promote her integration in France (which will be important if the domestic helper subsequently wishes to obtain a residence permit at the end of her long-stay visa).

Of course, as soon as the domestic worker commences working in France, the relationship with the employer will be governed by French labour laws and the employer will have to comply with French rules (employment contract, pay slips, minimum wages, working time and social contributions.).

The procedure to follow to get a French visa for a domestic helper is clearly an arduous task but it is worth consideration as it can help your family maintain its balance and can strengthen the bond you have with your helper.

OLN IP has once again been shortlisted in ALB IP Rankings 2022

by

Our OLN IP team has been listed as a Tier 1 firm for Copyright / Trademarks and as a Tier 2 firm for Patents in the Asian Legal Business (ALB) “Asia IP Rankings 2022” for Hong Kong. To view the full rankings please click here.

OLN IP was established on 1 January 2020, and we are particularly proud that our new venture has received this recognition from ALB for the second time.

OLN IP is led by Benjamin Choi and offers tailored, commercially-driven advice to intellectual property owners, across the different IP asset classes, including IP portfolio management.

About ALB Asia IP Rankings

ALB IP Rankings recognise the top firms for Intellectual Property in Asia. The rankings draw information from firm submissions, interviews, editorial resources, and market suggestions to identify and rank the firms.

OLN Once Again Ranked by Benchmark Litigation Asia-Pacific

by

OLN Once Again Ranked by Benchmark Litigation Asia-Pacific

We are proud to announce that the 2022 edition of Benchmark Litigation Asia-Pacific has placed Oldham, Li & Nie among the top Family & Matrimonial, Commercial & Transactions and Private Client law firms in Hong Kong.

OLN was ranked in the following categories:

  • Family and Matrimonial – Hong Kong and International firms – Tier 3
  • Commercial and Transactions – Hong Kong firms – Tier 3
  • Private Client – Hong Kong firms – Recommended

More information about the rankings – https://benchmarklitigation.com/NewsAndAnalysis/2022-Benchmark-Litigation-Asia-Pacific-is-now-live/Index/8294

About Benchmark Litigation

Benchmark Litigation, the definitive guide to the region’s leading dispute resolution firms and lawyers, was first published in 2008 covering the litigation and disputes markets in the United States and Canada and has broadened its coverage to include Asia – Pacific, Europe and Latin America – becoming a truly global guide. The guide provides in-depth law firm rankings, editorial commentary on many ranked firms and rankings of highly recommended dispute resolution specialists. Research is based in Hong Kong and is conducted through extensive interviews with litigators, arbitrators, dispute resolution specialists and their clients to identify the leading litigators and firms as well as examining recent casework handled by law firms and lawyers.

First Case in China Penalising Bad Faith Trade Mark Registration

by

The Fujian Higher People’s Court issued a judgment on 27 September 2021 awarding Emerson Electric Co (“Emerson”), a US company damages in the amount of RMB1.6 million payable by the defendants (two affiliated Xiamen companies, the main shareholder of the Xiamen companies and the trade mark agent) in China for having registered Emerson’s trade marks in bad faith as an act of unfair competition. 

Emerson is the owner of the brand name “InSinkErator 爱适易”. 

Two affiliated Xiamen companies have been found registering “InSinkErator” and “爱适易” and a number of other well known brand names as trade marks in China since around 2010.   Having considered all the relevant factors and circumstances, the Court ruled that the trade mark registrations the Xiamen companies acquired or attempted to acquire have exceeded the normal needs for its commercial activities and disturbed the business activities and interest of Emerson.  Such acts have caused unfair competition in the market in violation of Article 2 of the PRC Anti-Unfair Competition Law.  The main shareholder of the Xiamen companies and the trade mark agent representing the Xiamen companies were also held liable for facilitating the unlawful act of unfair competition.

Many brand owners before this case had inevitably spent huge effort and millions of legal costs to re-claim their trade mark rights in China without expecting any award of damages.  This case has set an encouraging precedent for brand owners to look up to and materialized the PRC Government’s initiative and determination to better safeguard the legitimate trade mark rights of brand owners.

Update on Underground Banking – Lesnina H. D.O.O. v Wave Shipping et all (HCA 154/2020)

by

If you are the plaintiff who has been defrauded within the underground banking system, think twice before applying for summary judgment where the defence of bona fide purchaser for value without notice has been pleaded.

Author: Eunice Chiu of OLN, Solicitor for the 8th Defendant

This is a short update on underground banking. Monies transferred through underground banking into Hong Kong may escape detection until they are mixed with funds obtained by fraud, and the defrauded party attempts to recover the defrauded funds by suing:

(a) the suspected fraudster (who will have usually disappeared by the time legal action is commenced), together with;

(b) other recipients who did not participate in the fraud but whose money arrived in the very same bank account which held the funds obtained by fraud.

It is generally when such a lawsuit is commenced (sometimes via an application for an injunction or the police issuing a letter of no consent which freezes the account) that innocent recipients come to realize that the fund senders had conducted the transfers using the underground banking system.

In April 2021, I wrote about how money transfers conducted through the underground banking system into Hong Kong may no longer be enforceable even if the recipient in question did not participate in the fraud or did not know that underground banking would be used to transfer funds to him/her. Between 2017 to 2021, the High Court decided in a number of cases that the use of underground banking, being illegal under PRC law though not illegal under HK law, violated the public policy of HK and therefore funds transferred in this manner are subject to being returned to the defrauded plaintiff: https://oln-law.com/underground-banking-in-hong-kong-ndash-can-a-payee-rsquo-s-finances-be-frozen/; https://www.lexology.com/24462/author/Eunice_Chiu/).  

However, in none of the cases decided based on the foreign illegality/public policy ground did the court make a factual finding that the recipient defendant knew, should have known or should have reasonably suspected that the money would be transferred using illegal means, i.e. the recipient defendant was a bona fide purchaser for value without knowledge who merely played a passive role. The question I then asked was, what if the recipient was such a purchaser?

In last Thursday’s decision handed down by Deputy High Court Judge Victor Dawes SC in  Lesnina H. D.O.O. v Wave Shipping et all (HCA 154/2020), not only did the Plaintiff fail to obtain summary judgment against our client, the 8th Defendant, the court also rejected the absolute approach used in previous cases including DBS Bank (Hong Kong) Limited v Pan Jing [2020] 4 HKC 395 (24 January 2020) as the correct or the only approach to be applied. Instead, the court spent a significant part of the judgment reviewing an alternative and more flexible approach represented by various authorities including Ryder Industries Limited (formerly Saitek Limited) v Chan Shui Woo [2015] 18 HKCFAR 546: Not every breach of foreign law makes a contract unenforceable; consideration must be given to the seriousness of the foreign illegality, i.e. there is a de minimis threshold. The court went on to reject the Plaintiff’s application for summary judgment on the basis that the illegality argument raised by the Plaintiff involves triable legal issues which ought to be fully ventilated at trial, not at the summary judgment stage, then granted the 8th Defendant unconditional leave to defend. In essence, the court rejected the absolute approach that has been in place since Pan Jing which was sufficient to grant judgment in favour of the Plaintiff even at the summary judgment stage – illegality renders a contract void and unenforceable full stop, both at the summary judgment and trial stages.   

Arguably, Dawes J went further than just deciding that there is an alternative legal approach that makes it inappropriate at the stage of a summary judgment application to grant judgment in favour of the Plaintiff where foreign illegality is triggered. At paragraph 57 of the judgment, he made it abundantly clear that he did not disagree with the heavy criticism of the absolute approach:

There is much to be said for the suggestion that Laddie J’s approach in Barros Mattos involved an overly blunt application of the maxim ex turpi causa non oritur action, and a preferable approach would be one that measures the gravity of the defendant’s criminal conduct against the impact of allowing the defence of change of position, and in my view the point applies to the bona fide purchaser defence as much as it does to the change of position defence [emphasis added]

Based on Dawes J’s latest judgment, in conjunction with that of Deputy High Court Judge Le Pichon in Solyda SRL v Wu Ge (HCA 1612/2019), [2021] HKCFI 1825 at para 24 who decided that the issue of the bona fides of the defendant was indeed relevant, I would see things in this way: At present, foreign illegality does not automatically render a transaction conducted via underground banking unenforceable, certainly not at the summary judgment stage, whilst 2 defences remain available to passive recipients: the de minimis threshold argument and the bona fide purchaser for value without knowledge defence.

OLN Once Again Awarded Employer of Choice by Asian Legal Business (ALB)

by

We are delighted to announce that Oldham, Li & Nie has again been awarded Employer of Choice, Asia’s Best Law Firms to Work For, by Asian Legal Business.

The ALB Employer of Choice is an annual listing of the best firms to work for across various Asian jurisdictions. Law firms are listed on the basis of what kind of working environment and support they provide, particularly during the pandemic, training and mentoring, how clear the path to seniority is, how open the law firm is to receiving feedback from its employees, etc.

We are grateful to our employees for sharing their feedback and for making OLN a great place to work!

The Employer of Choice list is featured in April 2022 issue of ALB. Click here to read the publication.