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Newly Inaugurated HKSAR Government Deports Children Having Rights of Abode
Immigration Ordinance -- Deprivation of Children's Right of Abode,Arbitrary Deportation &Violation of Liberty of Movement
1. Starting from 1 July 1997, Hong Kong is a Special Administrative Region of China. It is very disappointing that no longer after the handover, the newly inaugurated Hong Kong Special Administrative Region Government (hereafter refer to as the HKSAR Government) has passed new legislation to violate the civil and political rights of Hong Kong people. We would like to draw the attention of the Committee that amendment of the Immigration Ordinance on 10 July 1997 is an unlawful action. It empowers the Administration to deport her permanent residents who are entitled to enjoy the right of abode. It imposes new administrative measures to delay the people of exercising this inherited right. Such legislation is in clear breach of not only the Sino-British Joint Declaration, the Basic Law, but also International Covenant of Civil and Political Rights (ICCPR) and the Hong Kong Bill of Rights Ordinance (BORO).
2. 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)
3. As the constitution of Hong Kong Special Administrative Region, the Basic Law reinstates 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]
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4. Besides constitutional provisions, the Immigration (Amendment) (No.2) Ordinance passed by the Provisional Legislative Council on 21 June 1997 also provides clear definition on permanent residents of Hong Kong Special Administrative Region (Appendix 3):
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"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]
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5. Not only may the nationality of 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:
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6. Before 1 July 1997,
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(i) Any person born outside Hong Kong (except China) to a parent who is a permanent resident of Hong Kong can obtain permanent residency in Hong Kong through the application to Hong Kong Immigration Department. The child can enter Hong Kong by relevant travelling documents and then processed the application in Hong Kong. There is no quota.
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(ii) Any person born in China to a Hong Kong permanent resident having British nationality -- same as (i).
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(iii) Any person born in China to a Hong Kong permanent resident having Chinese nationality can only join the family in Hong Kong by applying the One-way Permit in China (Remarks 1) , which is issued by the Chinese Government.
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7. 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 is qualified as permanent resident of Hong Kong Special Administrative Region with the right of abode.
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8. 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 --
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(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)]
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9. It has been very common for Hong Kong people migrate to different parts of the world over the 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 restrictions to such a huge population to enter and reside in Hong Kong.
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10. Starting from the early 80s, 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. Government's estimations (Remarks 2) on the children who are waiting to move to Hong Kong after 1 July 1997 varies over different times:
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| Year of Government's Estimation | Daily Quota for Children to Reside in HK (age under 20) | Number of Children Waiting to Reside in Hong Kong after 1 July 1997 (age under 20) |
| 1993 | Unknown | 75,000 |
| 1993 | 15 | 65,000 |
| 1995 | 45 | 29,000 |
| 1997 | 45 | 66,000 |
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11. In the same paper, the Government projected that every year there will be 3,000 to 4,000 new born baby in China who have the 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.
Problems of One-way Permit System
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12. On the other hand, the One-way Permit system is commonly criticised as unfair, ineffective, characterised by lack of transparency and 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 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. It is very common that the child has been left in China while the rest of the family have already migrated to Hong Kong. Children in some parts of China are even denied the right of application. These children will never be able to join the family in Hong Kong.
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13. Worse still, the problem is aggregated by wide-spread 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.
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14. Under such an unsatisfactorily 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 5 & 6). 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.
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15. 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
16. 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 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 arrangement 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.
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17. 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 7). It shows that the Government has devoted administrative convenience over the children's consitutional rights.
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18. Under the new legislation, the existing 1,500 children who have right of abode in Hong Kong will be deported back to China. Their right of abode are not recognised by the HKSAR Government. 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.
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Discrimination Against Children Born in China
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19. For the 66,000 children who are still waiting in China, more restrictions are laid for entering Hong Kong. New administrative measures are employed to delay their exercise of right of abode. For example, the so-called "Certificate of Entitlement" are introduced. Among these 66,000 children, there is no definite time frame set for the 37,000 children whose identifications have been verified to move to Hong Kong. The Government denies the exercise of thier right of abode.
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20. While the Governments are verifying the children's identity, which in many cases are 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.
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21. 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, either in Hong Kong or by mail, and can remain in Hong Kong when their identities are under verification by the Immigration Department.
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22. 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 ICCPR and 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.
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23. 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. Evidently, it is a contravention 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). Its retrospective effect is also in breach of BORO (art. 12) and ICCPR (art. 15.1). (Appendix 8)
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24. The Sino-British Joint Declaration is an international agreement registered at United Nations and bounded by international law. According to art. 39 of Basic Law, ICCPR remains in force in the Hong Kong Special Administrative Region. In light of this, we strongly urge the Committee to express concern to this violation of right of abode issue of Hong Kong.
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25. We strongly urge the Committee to ensure the protection of the righs of the children by demanding the Hong Kong Special Administrative Region Government to repeal the discriminative provisions of Immigration (No. 3) Ordinance which contravene the ICCPR, theConvention on the Rights of the Child, the Sino-British Joint Declaration, the Basic Law, as well as the Hong Kong Bill of Rights Ordinance.
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26. 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.
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27. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government to abandon the provisions in the Immigration Ordinance that deprive the right of abode of the Hong Kong permanent residents.
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28. 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.
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29. We strongly urge the Committee to request the Hong Kong Special Administrative Region Government and the Chinese Government to reform the One-way Permit system so that the mother ofthe 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.
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Remarks:
1. One-way Permit system is an emigration policy in China. It governs the migration of Chinese citizens to Hong Kong, no matter whether they are having the right of abode in Hong Kong or not.
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2. According to a paper of the former Legislative Council, named "Increase of Quota for Chinese Immigrants" , which was submitted by the former Security Branch, Hong Kong Government in June 1995 (Ref: SBCR 1 / 2091 / 81).
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3. The figure is extracted from a paper tabled to the Provisional Legislative Council by the Security Bureau, HKSAR Governmetn, 8 July 1997.
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4. In addition to the One way Permit, the Chinese authority issues "Two-way Permits" for the Chinese citizens to visit Hong Kong. Two-way Permits are usually valid for three months.