Urgent Appeal to the United Nations Committee on the Rights of the Child

Newly Inaugurated Hong Kong Special Administrative Region Government Deports Children to China whose Families are in Hong Kong & Denies Children's Rigths to Education

Summary

Introduction

I. Immigration Ordinance -- Contravention of art. 9 & 10 of the Convention on the Right of the Child

• Permanent Residency

• Right of Abode

• Migration Policy

• Problems of One-way Permit System

• Government's Contempt for Children's Right of Abode

• Discrimination Against Children Born in China

II. Denial of the Right to Education of Chinese Child Migrants Seeking Right of Abode

Recommendations

Remarks

List of Appendices

Summary

1. This is a special report asking the Committee to give its urgent attention to the fact that the newly inaugurated Hong Kong Special Administrative Region Government ("the Government") has passed new legislation to deport children, who have right of abode in Hong Kong and, most of whose both parents have resided in the territory.

2. The Sino-British Joint Declaration and the Basic Law came into effect on 1 July 1997. These documents stated clearly the fundamental rights of the Hong Kong residents, which include the right of abode and entitlement of permanent residency of Hong Kong (para. 3-4).

3. It is now estimated that there are about 66,000 children who have right of abode in China waiting to come to Hong Kong.

4. However, both the Chinese and Hong Kong Governments failed to help the family to have reunion nor to take appropriate corresponding measures to deal with the change of law. On the contrary, the Government imposed new restrictions (para. 22) which does not recognise their right of abode.

5. The One-way Permit system, an emigration policy administered by the mainland Chinese authority, governs the migration of Chinese citizens to Hong Kong, whether or not they have the right of abode in Hong Kong. It has long been criticised as unfair and ineffective, as it is characterised by lack of transparency and a uniform standard. The application is not processed on the basis of family units, rather, there are different queues for spouses and for children. As a result, members of the same family cannot come to Hong Kong at the same time. The problem is even aggregated by widespread corruption (para.14-18).

6. This much critised policy leaves many families no better alternative but to smuggle the children to Hong Kong. Some have overstayed in Hong Kong after the expiration of the Two-way Permit. There are now approximately 1,500 children seeking right of abode who entered Hong Kong illegally before 30 June 1997 or who are overstaying in Hong Kong.

7. On 9 July 1997, the HKSAR Government hastily passed the Immigration (Amendment) (No.5) Bill into law by three readings within one day. It shows that the Government has devoted administrative convenience over the children's constitutional rights.

8. The new legislation adds restrictions for these children who are born in China to enter Hong Kong without the so-called "Certificate of Entitlement" (COE). Prior to entering Hong Kong, applications must be submitted at the applicants' places of birth ,verified by both the Chinese authority and Hong Kong Immigration Department. However, after the COE has been issued by the Hong Kong Immigration Department , the children still have to wait for the allocation of One-way permit quota to come to Hong Kong.

9. The Government has announced that the 1,500 children who entered Hong Kong "illegally" before the passage of the new law will be deported to China. As these children will be separated from the parents against their will, it is clearly a contravention of the Convention on the Rights of the Child (art. 9 & 10). It also constitutes a violation of the Sino-British Joint Declaration (art.158), the Basic Law (art.24.3), the Hong Kong Bill of Rights Ordinance (art.8.4), as well as ICCPR (art.12.4).

10. This newly enacted legislation is clearly a discrimination against the Chinese-born children of Hong Kong permanent residents. There are no quota limit for the children of Hong Kong permanent residents who are born outside Hong Kong and China. These children can enter Hong Kong using travel documents or passports issued by the country where the children are born. They can apply for the "Certificate of Entitlement" after they have entered Hong Kong, or by mail, and can remain in Hong Kong when their entitlement is under verification by the Immigration Department.

11. This issue is now the subject of legal proceedings and the children have been permitted to stay temporarily in Hong Kong. However, their right to public education is being denied (para. 28-32).

Introduction

1. This is a special report asking the Committee to give its urgent attention to the fact that the newly inaugurated Hong Kong Special Administrative Region Government ("the Government") has passed new legislation to deport children, who have right of abode in Hong Kong and, most of whose both parents have resided in the territory. This issue is now the subject of legal proceedings and the children have been permitted to stay temporarily in Hong Kong. However, their right to public education is being denied.

I. Immigration Ordinance - Contravention of art. 9 & 10 of theConvention on the Rights of the Child

2. On 9 July 1997, immediately following the change of sovereignty, the HKSAR Government passed new legislation to deport many children, who are entitled to enjoy the right of abode under the Basic Law. The Government imposed new administrative measures to delay the children of exercising this inherited right. Among these children, many of their parents have already settled in Hong Kong. As a result, such legislation would have no good but to create more split families. This new legislation is in clear breach of not only the Sino-British Joint Declaration, the Basic Law, the Hong Kong Bill of Rights Ordinance (BORO), International Covenant on Civil and Political Rights (ICCPR), but also the Convention on the Rights of the Child.

Permanent Residency

3. The change of sovereignty involves the alteration of the nationality and residence rights of many Hong Kong people. According to the Sino-British Joint Declaration (Appendix 1),

"The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:

-all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals; ... "

(art. 158, Sino-British Joint Declaration)

4. As the constitution of Hong Kong Special Administrative Region, the Basic Law states the fundamental rights of the Hong Kong residents. Identical to art. 158 of the Sino-British Joint Declaration, art. 24 of Basic Law states (Appendix 2):

"... The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2); ...

... The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode."

[art. 24, Basic Law]

5. Besides constitutional provisions, the Immigration (Amendment) (No.2) Ordinance passed by the Provisional Legislative Council on 21 June 1997 also provides a clear definition of permanent residents of Hong Kong Special Administrative Region (Appendix 3):

"A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region --

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his father or mother was settled or had the right of abode in Hong Kong at the time of the birth of the person or at any later time.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (a) or (b) if the parent had the right of abode in Hong Kong at the time of the birth of the person. ..."

[No. 2 of Schedule 1, Immigration (Amendment) (No.2) Ordinance]

6. Not only may the nationality of some Hong Kong people have changed because of the handover, the procedure to obtain permanent residency for the person, who is born outside Hong Kong to a parent who is a permanent resident of Hong Kong, has also changed as a result of the change of sovereignty. The differences may be illustrated as follows:

7. Before 1 July 1997,

(i) Any person born outside Hong Kong (except China) to a parent who was a permanent resident of Hong Kong could obtain permanent residency in Hong Kong through the application to Hong Kong Immigration Department. The child could enter Hong Kong by relevant travelling documents and then have the application processed in Hong Kong. There was no quota.

(ii) Any person born in China to a Hong Kong permanent resident having British nationality -- same as (i).

(iii) Any person born in China to a Hong Kong permanent resident having Chinese nationality could only join the family in Hong Kong by applying the One-way Permit in China (Remarks 1), which is issued by the Chinese Government.

8. After 1 July 1997, Hong Kong reverted to Chinese sovereignty and the immigration law was amended. As noted above, the Sino-British Joint Declaration and the Basic Law specify those who qualify as permanent residents of the Hong Kong Special Administrative Region with the right of abode.

Right of Abode

9. Correspondingly, the Immigration Ordinance (Cap.115) states that Hong Kong permanent residents enjoy right of abode in Hong Kong (Appendix 4):

"(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right --

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him. ..."

[2A of Part IA, Immigration Ordinance (Cap.115)]

Migration Policy

10. It has been very common for Hong Kong people to migrate to different parts of the world over past years. While there are no statistics available for the Chinese born to a Hong Kong permanent resident outside Hong Kong and China, it is estimated that the number should be more than 1,000,000. There is absence of immigration restriction to such a huge population to enter and reside in Hong Kong.

11. Starting from the early 1980s, many Hong Kong males went to China and married with Chinese women. They had children born in China and then the spouse and child are waiting to move to Hong Kong. As mentioned in the previous paragraph, these spouses and children have to apply for One-way Permits to seek family reunion. Government's estimates (Remarks 2) of the children who are waiting to move to Hong Kong after 1 July 1997 varies over different times:

12. Starting from 1995, the One-way Permit quota amounts to 150 per day. 45 places are allocated for children who will have right of abode in Hong Kong after 1 July 1997. The Government also projected that every year there will be 3,000 to 4,000 new babies born in China who have right of abode in Hong Kong. These estimations were conducted on the ground that it was assuming that the One-way Permit system ran smoothly and free of abuse. However, in a government paper in July 1997 (Remarks 3), the HKSAR government estimated that there are now 66,000 children who have right of abode in Hong Kong waiting to come to Hong Kong. Apparently, the abuses of the One-way Permit quota system are not uncommon.

13. In July 1997, the Chinese Government increased the daily quota for mainland-born children migrating to Hong Kong from 45 to 75 a day. Each of the 30 mainland spouses migrating to Hong Kong each day, is allowed to bring one child under the age of 14. Guangdong, the southern Chinese province which accounts for 2/3 of the national application migrating to Hong Kong, is allocated the full national daily quotas for children and married couples who have been separated for more than 10 years (45 and 30 respectively).

Problems of One-way Permit System

14. On the other hand, the One-way Permit system is commonly criticised as unfair, ineffective, characterised by lack of transparency and of a uniform standard. The applicants have no way of knowing the eligibility of applications, the assessment criteria nor the waiting time. In fact, One-way Permits are given not on the basis of family units, but on an individual basis and there are different queues for spouses and for children. As a result, members of the same family cannot come to Hong Kong at the same time. Sad stories of split families are common.

15. It is very common that the child having right of abode in Hong Kong after 1 July 1997 has to leave the mainland mother and join the father in Hong Kong; the mother does not know when she can come and join her family. There are also cases in which children has to be left in China while the rest of the family has already migrated to Hong Kong. Children in some parts of China are even denied the right of application. These children will can never be able to join the family in Hong Kong. Recently for the spouse queue in Guangdong, the Chinese government was only dealing with pre-1990 applications. Applications by those married after 1990 are kept frozen. The affected families cannot know how much longer have to wait.

16. The change of policy to allocate more quotas to Guangdong failed to address the root of the problem. As more quotas are allocated for Guangdong province, correspondingly the quota for other provinces have to be cut and the children affected may never be able to join their families in Hong Kong (Appendix 5).

17. Worse still, the problem is aggregated by widespread corruption. Many applicants have reported that they have to pay a bribe (from HKD 60,000 to HKD 200,000 i.e. USD 7,692 to USD 25,641) to the responsible district officials to speed up the process or else they would be disqualified.

18. Under such an unsatisfactorily devised and administered policy, many families have no better alternative but to smuggle the children to Hong Kong. Some have overstayed in Hong Kong after the expiration of the Two-way Permit (Remarks 4) (Appendix 6 & 7). There are now approximately 1,500 children seeking right of abode who entered Hong Kong illegally before 30 June 1997 or who are overstaying in Hong Kong.

19. As noted above, Basic Law came into effect on 1 July 1997 and those children who are born outside Hong Kong to a parent of Hong Kong permanent residents become Hong Kong permanent residents and are entitled to the right of abode.

Government's Contempt for Children's Right of Abode

20. However, the HKSAR Government failed to take appropriate corresponding measures to deal with the change of law. It did not recognise the identity of the 1,500 children who are staying in Hong Kong as permanent residents. It did not issue permanent identity cards which state their right of abode to them. Even though 37,000 children's identities (who are in China) have been verified by both the Chinese and HKSAR Government, the HKSAR Government did not have any further arrangements for bringing them to Hong Kong besides the Chinese One-way Permit system. Nor did the HKSAR Government speed up the identity verification process of the remaining children who are still living in China and who claim to have right of abode in Hong Kong.

21. On the contrary, on 9 July 1997, the HKSAR Government hastily passed the Immigration (Amendment) (No.5) Bill into law by three readings within one day (Appendix 8). It shows that the Government has devoted administrative convenience over the children's constitutional rights.

22. The new legislation adds restrictions for these children who are born in China to enter Hong Kong without the so-called "Certificate of Entitlement" (COE). Prior to entering Hong Kong, applications must be submitted at the applicants' places of birth, verified by both the Chinese authority and Hong Kong Immigration Department. However, after the COE has been issued by the Hong Kong Immigration Department, the children still have to wait for the allocation of One-way permit quota to come to Hong Kong.

23. For the 1,500 children who entered Hong Kong illegally before the passage of the new law, the Government will deport them back to China. It exhibits how the HKSAR Government deprives their right of abode. The definition of right of abode, which is clearly prescribed by law (including not to be deported from the HKSAR), is being retailored by the HKSAR Government.

Discrimination Against Children Born in China

24. Among these 66,000 children are still waiting in China, there is no definite time frame set for the 37,000 children whose identity have been verified to move to Hong Kong. The Government denies the exercise of their right of abode.

25. While the Governments are verifying the children's identity, which in many cases is clear, the children are not allowed to stay in Hong Kong. As a result, the right of abode of these children is violated and they cannot exercise such right to enter and reside in Hong Kong for at least another 4 to 5 years.

26. This newly enacted legislation is clearly a discrimination against the Chinese-born children of Hong Kong permanent residents. As mentioned above, there are no quota limit for the children of Hong Kong permanent residents who are born outside Hong Kong and China. These children can enter Hong Kong using travel documents or passports issued by the country where the children are born. They are allowed to apply for the "Certificate of Entitlement" to the Hong Kong Immigration Department directly, either in Hong Kong or by mail, and can remain in Hong Kong when their entitlement is under verification by the Immigration Department.

27. Alarmingly the new Immigration Ordinance passed on 9 July 1997, also has retrospective effect. It is back dated to 1 July 1997. The HKSAR Government claimed it is designed for the sake of deporting "illegal immigrants". Such a move is clearly a violation of the ICCPR but cannot be challenged under the Hong Kong BORO, stating that no one can be convicted for something that the law did not at the time of the relevant conduct regard as a crime (Appendix 9).

28. The newly passed Immigration (No.3) Ordinance deprives mainland children of their right of abode in Hong Kong. It permits the deportation of children who have right of abode in their own place. It restricts and delays the children's exercise of their right of abode. It separates the children from the parents against their will. It is a contravention of the Convention on the Rights of the Child (art. 9 & 10), the Sino-British Joint Declaration (art.158), the Basic Law (art.24.3), the Hong Kong Bill of Rights Ordinance (art.8.4) (Appendix 10), as well as ICCPR (art.12.4).

II. Denial of Right to Education of Chinese Child Migrants Seeking Right of Abode

29. It is alarming that the right to education of Chinese child migrants seeking right of abode in Hong Kong is not recognised by the SAR Government. Most of them are not allowed to go to school. The situation clearly violates article 28 of the Convention stating that "States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity..."

30. At the meeting of the Committee on 3 October 1996, Hong Kong Government reported that "it was now the policy that children illegally entering the Territory who would have a right of abode thereafter 1 July 1997 would not be returned to China, but would be treated in every way as normal residents, with the right, for instance, to public education."(Remarks 5) However, the Government did not keep its word.

31. The Government did not recognize the right to education of these children migrants (Appendix 11 & 12). There is in lack of a clear policy or guidelines to offer school placements to these children. The Education Department will not offer school placements to these children unless their eligibility has been confirmed by the Director of Immigration. Such applications are death with on a case-by-case basis. That is to say, the right to public education of these children is vested in the discretion of the Director of Immigration.

32. Our organization has received many complaints and enquiries about the education arrangements for the children migrant. Most of their applications for education are rejected by the Immigration Department without any explanation. In fact, there is no appeal system available. Most of these children have stayed in Hong Kong for over half a year. They become depressed and low in self-esteem as they can do nothing but staying home waiting for the outcome of the applications for staying in Hong Kong. Their education opportunities are deplorably exploited. Worse still, they cannot leave Hong Kong as all of their family members have been living in Hong Kong for years, and no one will be able to take care of the0m in mainland China.

33. Some of the children have approached a number of schools directly to ask for school placements. The school will offer placements to them on the condition of approval from the Education Department. Again, the final decision is vested in the discretion of the Director of Immigration, as the Education Department will seek the confirmation from the Director of Immigration. It arbitrarily violates the children's right to education.

Recommendations

34. We strongly urge the Committee to ensure the protection of the rights of the children by demanding the Hong Kong Special Administrative Region Government to repeal the discriminative parts of Immigration (No.3) Ordinance which contravene the Convention on the Rights of the Child, the Sino-British Joint Declaration, the Basic Law, the ICCPR, as well as the Hong Kong Bill of Rights Ordinance.

35. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government not to deport the 1,500 Hong Kong permanent residents, mostly children who are, and issue permanent identity cards which state their right of abode.

36. We strongly urge the Committee to request Hong Kong Special Administrative Region Government to repeal the provisions in the Immigration Ordinance that deprive the right of abode of the Hong Kong permanent residents.

37. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government and the Chinese Government to adopt effective administrative measures in order to enable the children who are permanent residents of Hong Kong to arrive Hong Kong in an orderly manner.

38. We strongly urge the Committee to request Hong Kong Special Administrative Region Government and the Chinese Government to reform the One-way Permit system so that the mother of the children who have the right of abode in Hong Kong can join their families in Hong Kong in a speedy way, and the application for family reunification could be dealt with in a humane and expeditious manner.

39. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to recognize the right to education of the child migrants and to offer school placements for children pending decisions on their appeals to stay in Hong Kong.

Remarks:

1. One-way Permit system is an emigration policy administered by the mainland authorities. It governs the migration of Chinese citizens to Hong Kong, whether or not they are have the right of abode in Hong Kong.

2. According to a paper named "Increase of Quota for Chinese Immigrants" , which was submitted to the former Legislative Council by the former Security Branch, Hong Kong Government in June 1995 (Ref: SBCR 1 / 2091 / 81).

3. The figure is extracted from a paper tabled before the Provisional Legislative Council by the Security Bureau, HKSAR Government, 8 July 1997.

4. In addition to the One way Permit, the Chinese authority issues "Two-way Permits" for the Chinese citizens for visiting purpose. Two-way Permits usually allows Chinese citizens to stay in Hong Kong for three months.

5. Paragraph 46, CRC/C/SR.331, Summary Record of the 331st Meeting, Thirteenth Session ,Committee on the Rights of the Child, held at the Palais des Nations, Geneva, on Thursday, 3 October 1996, at 10 a.m.

List of Appenices (Appenices not included here)

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