LegCo Paper No. CB(2) 1590/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/10/96

Bills Committee on
Immigration (Amendment)
Bill 1997

Minutes of 2nd meeting held on Saturday, 1 March 1997 at 8:30 am in Conference Room A of the Legislative Council Building

Members present:

    Hon James TO Kun-sun (Chairman)
    Hon Mrs Selina CHOW, OBE, JP
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon Bruce LIU Sing-lee
    Hon Margaret NG

Members absent:

    Hon LAU Wong-fat, OBE, JP
    Hon Howard YOUNG, JP

    Hon Christine LOH Kung-wai

    Hon CHENG Ming-fun

    Hon CHEUNG Hon-chung

    Hon IP Kwok-him

Public Officers attending :
    Mr Alex FONG
    Deputy Secretary for Security 2

    Mr T P WONG
    Assistant Director of Immigration (Special Duties)

    Mr Gilbert MO
    Senior Assistant Law Draftsman

Clerk in attendance:

    Mrs Percy MA
    Chief Assistant Secretary (House Committee)

Staff in attendance:

    Mr Jimmy MA
    Legal Adviser

    Mrs Eleanor CHOW
    Senior Assistant Secretary (House Committee)

I.Meeting with the Administration

Definition of British citizens

(Paper No. CB(2) 1367/96-97 (02) )

1.Members raised no queries on the information paper provided by the Administration.

Condition of stay stamps for visitors

(Paper No. CB(2) 1367/96-96 (03), Annexes A-C of the paper tabled and circulated vide LegCo Paper No. CB (2) 1372/96-97)

2.The Administration explained that the design of the condition of stay stamp in use prior to 1972, albeit spelt out clearly the conditions imposed on visitors, had caused a lot of complaints because of its size (Annex A refers). The stamp was subsequently reduced to the current size in 1972 (Annex B refers). The various conditions of stay imposed on visitors were defined in the Immigration Regulations. Assistant Director of Immigration (Special Duties) (AD(SD)) informed members that posters explaining the conditions of stay were also displayed at immigration control points such as the Airport, a sample of which was circulated at the meeting.

Adm 3.Mrs Selina CHOW and Miss Margaret NG commented that the condition stamp at Annex A should be reduced in size and simplified to convey a clear message on the conditions of stay for visitors. Members also considered that the poster was not attractive enough to draw visitors’ attention. The Administration undertook to conduct a review separately to see whether there was a need to change the design of the condition of stay stamps. Members agreed that the issue had no direct bearing on the Bill.

British citizens with right to land status

4.Deputy Secretary for Security 2 (DS for S2) said that the paper tabled (and circulated vide LegCo Paper No. CB(2) 1372/96-97(01)) aimed to address the submission from Mr J H DICKER and concerns on the subject raised by members at the last meeting.

5.He said that the proposal to remove the right to land of 22 000 odd British citizens was not a normal policy change, but arose from the change in relationship between the UK and Hong Kong upon change of sovereignty. Removing a statutory right was not without precedent. He referred to the last paragraph of the paper which cited examples of citizens of the United Kingdom and Colonies losing their automatic right of abode and free entry to the United Kingdom under the Immigration Act 1971 and the Commonwealth Immigrants Act 1968 respectively. In the case of the Immigration Act 1971, no other alternative was provided to those affected. Under the Administration’s proposal, those who had the right to land removed would be granted unconditional stay in lieu. Transitional arrangements would also be introduced to minimize the impact on those affected.

6.He went on to explain that allowing the 22 000 British citizens to keep the right to land status would mean a perpetuation of British privileges beyond 1 July 1997. The Government’s proposal to remove the right to land status was a clean and tidy way of settling the matter once and for all. It left no room for uncertainty beyond 1 July 1997. He pointed out that those who were in Hong Kong would be given unconditional stay status. They would only lose a statutory right for a very short period because as soon as the right of abode legislation was in place, they would be able to acquire the right of abode in Hong Kong, which was a better legal status.

7.He said that retaining the right to land provision in the Immigration Ordinance for those who had acquired right to land status did not appear to be inconsistent with the Basic Law. However, it was uncertain whether this would be acceptable to the HKSAR Government.

8.Miss Margaret NG said that the removal of statutory rights under the Immigration Act 1971 and the Commonwealth Immigrants Act 1968 had in fact aroused public outcry at both local and international levels at the time. These were precedents not to be followed. It was also inappropriate to compare these cases with the right to land status enjoyed by British citizens in Hong Kong because the latter was acquired after completion of seven years continuous residence in the territory. It was unacceptable to remove the right to land status of the 22 000 British citizens and expect them to exchange for the right of abode which was still an uncertainty. She pointed out that there was no reference to the removal of right to land in the Basic Law, and it would appear that the intention of Article 24(2)(4) of the Basic Law which allowed non-Chinese nationals to acquire right of abode was provided for in the spirit of allowing these persons to retain their existing rights which was conducive to the maintenance of the prosperity and stability of Hong Kong. It would be morally acceptable if the legal status of the right to land was upgraded to the status of right of abode, instead of having it downgraded to an administrative status of unconditional stay. Since the Administration had advised that the question was not one of taking away a legal right because of change of policy, there was all the more reason for this to be treated as a special case. Mrs Selina CHOW fully supported Miss NG’s view.

9.Mr LEE Cheuk-yan said that from the view point of equal employment opportunities for local workers, the privileges currently enjoyed by British citizens in immigration matters should be abolished.

10.Mr Bruce LIU said that according to Article 24(4) of the Basic Law, non-Chinese nationals applying for right of abode had to meet the criterion of taking "Hong Kong as their place of permanent residence". Chances were that some British citizens might not be able to fulfill the criterion and some might choose not to apply for right of abode. He inclined to support the view that any acquired statutory right should not be removed. In this connection, he proposed that those who had acquired the right to land as at a cut-off date, e.g. when the Bill was enacted, should be allowed to retain it. Those who were not in Hong Kong on that date would be allowed to retain it if they returned to Hong Kong within 12 months following that date. As regards whether the arrangement was acceptable to the HKSAR Government, it was a matter for it to decide. Members reckoned that there could be a variation of options under Mr LIU’s proposal.

11.In response to Miss CHAN Yuen-han, Mrs Selina CHOW said that when the issue was discussed by the Panel on Manpower, Members of the Liberal Party were in support of the abolition of privileged immigration status of British citizens, but not the question of implementing the new policy retrospectively to those who had already acquired right to land which was in fact not raised and discussed.

12.DS for S2 responded that the proposal to remove the right to land from those holding it was covered in a discussion paper for the Panel on Manpower in November 1996. However, the Panel’s discussion was more focused on the principle of the proposal and the timing for implementation. On the timing of implementing the proposal relating to right to land, he said that it was the Administration’s original intention to introduce the proposal when the legislation on right of abode for non-Chinese nationals was in place. However, members of the Panel on Manpower had expressed concern that the immigration status of British citizens should be abolished as soon as possible, and the British community had also indicated that the new policy should be put in place early to allow them to make adjustments before the change of sovereignty. In fact, the suggestion that the timing for implementing the proposal for right to land should be delinked from that for condition of stay was also made during public consultation, but the Administration was of the view that it would cause confusion to the community. Taking into account all factors, the Administration decided on the implementation date of 1 April 1997. Should members consider that timing was not of essence, consideration could be given to deferring the implementation date of the proposal. On Mr LIU’s proposal, he reiterated the Government’s position that inherent privileges should be removed from law once and for all. It was for the sake of both clarity and consistency that the immigration status of British citizens should be put on par with other foreign nationals.

13.In response to the Chairman, DS for S2 said that non-Chinese nationals would have to apply for right to abode after 1 July 1997. There were about 70 000 non-Chinese nationals in Hong Kong, including 22 000 British citizens holding the right to land. The policy intention was to remove the provision of right to land from the Immigration Ordinance after 1 July 1997. Those British citizens who applied for and could not acquire right of abode would not be allowed to retain their right to land status. Miss Margaret NG was concerned about the position of this category of persons as they were different from those who chose not to apply for right of abode.

14.Miss CHAN Yuen-han was in support of the Administration’s proposal to grant unconditional stay status to those British citizens holding the right to land. She said that the right to land was granted to them as a privileged treatment for historical reasons, and should therefore be removed upon the change of sovereignty. Mrs Selina CHOW pointed out that regardless of their status, this category of British citizens could still continue to work in Hong Kong. Hence, changing their status to unconditional stay would have no effect on local job opportunities. Miss Margaret NG said that the issue was one related to immigration matters, not employment matters.

Adm 15.In response to Miss Margaret NG, the Administration undertook to provide statistics on the composition of the 22 000 British citizens, e.g. how many had retired; how many were in employment and how many were children.

(Post-meeting note : The Administration has subsequently advised that it does not have the relevant statistics.)

British Citizens on a limit of stay

16.DS for S2 explained that under the proposal, the 16 000 odd British citizens who had not acquired the right to land status and were currently staying in Hong Kong on a limit of stay could continue to reside in Hong Kong without conditions until their limit of stay expired, after which their applications for extension of stay would be considered in accordance with the immigration policy applicable to all foreign nationals.

17.In response to members, AD (SD) elaborated on the policy of extension of stay under the 1-2-2-3 pattern. Those British citizens who had resided for less than seven years in Hong Kong before implementation of the new policy could continue to live and work in Hong Kong until their current limit of stay expired. They would have to apply for an extension of stay prior to the expiry of their limit of stay and their applications would be subject to the same criteria applicable to other foreign nationals. On the question of legitimate expectation of British citizens who had resided in Hong Kong for 5 years and one day or more (i.e. in the last category of the 1-2-2-3 pattern) to acquire right to land, he said that this category of persons could not acquire right to land when the new policy was implemented. However, they could apply for unconditional stay upon completion of seven years of residence.

18.In response to the Chairman on the number of British citizens falling under the last category of the 1-2-2-3 pattern, AD(SD) said that there was no available information. 16 000 was only an estimated figure based on information supplied by the Hong Kong Tourist Association.

Mrs Selina CHOW’s proposal

19.In order to address the situation of those who had the right to land status, Mrs Selina CHOW proposed to implement the proposals in the Bill in stages i.e. the proposal relating to those who had already acquired the right to land should be dealt with at a later stage, by another bill if necessary, when the right of abode issue was resolved, whereas the remaining proposals containing in the Bill together with the administrative measures proposed should be dealt with immediately.

20.In response to the Chairman on Mrs CHOW’s proposal, DS for S2 said that the purpose of the Bill was to remove the privileges of British citizens in immigration matters by a package of legislative and administrative measures. From policy angle, it was important that any arrangement proposed should be clear cut and would not cause confusion to the community. The Administration would give further consideration to Mrs CHOW’s proposal.

21.Mrs CHOW said that her proposal would give a clear message to the effect that the privileged immigration status currently afforded to British citizens would be abolished on the implementation date. The Chairman supplemented that this would in some way address some members’ concern about employment opportunities of local workers being jeopardized by influx of Britons. Mrs CHOW added that careful consideration should however be given to the position of British citizens who were already in Hong Kong, especially those holding the right to land. The Chairman commented that the eligibility criteria of the right of abode would also affect members’ consideration of the issue.

22.Senior Assistant Law Draftsman (SALD) advised members that it appeared technically possible to amend the Bill to effect Mrs CHOW’s proposal. But it would involve moving a number of Committee stage amendments and the introduction of a separate Bill at a later stage.

23.Miss CHAN Yuen-han said that in spite of her earlier comments about British citizens holding the right to land, she respected members’ views on the issue. She had no objection to Mrs CHOW’s two-pronged approach to deal with the Bill.

Members’ position

24.Members present unanimously agreed that the right to land should be abolished as soon as possible so that it would no longer be made available to those British citizens entering Hong Kong after the implementation date.

25.Members also agreed that those British citizens holding the right to land should not be affected by the Bill. However, they had different views on whether the matter should be further pursued, and if so, when.

26.In response to the Legal Adviser, members confirmed that the special deportation and removal arrangements enjoyed by those British citizens holding the right to land should not be affected by the Bill because these were part and parcel of their existing immigration status.

27.After further deliberation, the Chairman summarized the position as follows-

  1. Members present unanimously agreed that:

    1. Those persons who had acquired the right to land under section 8 of Cap 115 should not be affected by the Bill;

    2. The right to land should be removed from legislation from the commencement of the Bill passed with amendments reflecting this agreement; and

  2. Members present had noted the administrative measures in granting limit of stay to British citizens on par with visitors of other countries and the policy to grant unconditional stay status after seven years of residence under the 1-2-2-3 pattern.

Adm 28.The Administration undertook to respond to members’ proposal at the next meeting.

II. Date of Next Meeting

29.Members agreed that in addition to the meeting on 7 March, 1997, an additional meeting would be scheduled at 8:30 am on 13 March 1997.

30.The meeting ended at 10:40 am.

LegCo Secretariat

18 March 1997

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