LegCo Paper No. CB(2) 2496/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/10/96
Bills Committee on
Minutes of 3rd meeting held on Friday, 7 March 1997 at 4:30 pm. in the Conference Room A of the Legislative Council
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon LAU Wong-fat, OBE, JP
Hon Howard YOUNG, JP
Hon Christine LOH Kung-wai
Hon CHAN Yuen-han
Hon Paul CHENG Ming-fun
Hon CHEUNG Hon-chung
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Margaret NG
Member absent :
Hon LEE Cheuk-yan
Public officers attending :
- Ms Ingrid HO
- Principal Assistant Secretary for Security
- Mr T P WONG
- Assistant Director of Immigration (Special Duties)
- Mr Ian WINGFIELD
- Crown Solicitor
- Mr Gilbert MO
- Senior Assistant Law Draftsman
By invitation :
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 deputations
(Paper No. CB(2) 1454/96-97(01))
The Chairman welcomed representatives of the Law Society of Hong Kong (the Society), the Expatriate Inspectors Association (the Association) and the Administration to the meeting.
The Law Society of Hong Kong
2.At the invitation of the Chairman, Mr Norris YANG of the Society highlighted the following points in the submission (tabled at the meeting and circulated vide Paper No CB(2) 1472/96-97(02)) -
- The Society accepted that with the approaching change of sovereignty, the provisions of the Immigration Ordinance relating to the privileged immigration status of British citizens should be repealed. However, the Society questioned whether the changes proposed by the Government were the most appropriate way of implementing the policy;
- The Society acknowledged that it would be necessary to bring the case of British citizens who had not acquired the right to land in line with that of other foreign nationals;
- The proposal to remove the statutory right to land from those who had already acquired it was a retrograde step which would create dismay and undermine confidence. Since the Immigration Ordinance would have to be amended to domesticate Article 24 of the Basic Law after 1 July 1997, the Society suggested that instead of removing the right to land status, British citizens who had seven continuous years of residence should be granted the right to apply for permanent residency now;
- However, if the Administration was to proceed with the implementation of the proposed changes, the Society suggested that the effective date should be deferred from 1 April to 1 May, or even later, to allow more time for the Immigration Department and the British community to prepare for the changes;
- The Society noted that there was premature implementation of administrative changes before the Bill was promulgated and that appropriate work visa application forms for British citizens had yet to be made available; and
- The Society suggested that holders of "R" coded identity cards who had the right to pass through immigration control without the need to show their passports be allowed to retain this benefit for three months following removal of their right to land status.
3.Mr Christopher CHAN referred members to the supplemental submission of the Society which was prepared having regard to further concerns expressed by the Societys members (tabled and circulated vide Paper No. CB(2) 1472/96-97(03)). Mr Christopher CHAN made the following points -
- The proposed changes were contrary to the general principles of the rule of law. Legislation should not without cogent and justifiable reasons deprived a person of his accrued or accruing right;
- Under the proposed changes, those who had acquired the right to land but failed to return to Hong Kong before 1 April 1997 or within 12 months thereof would be treated the same as any other foreigners notwithstanding the contributions they had made to Hong Kong. This was totally unethical and immoral;
- The proposed amendments contravened the spirit of Article 24(4) of the Basic Law which gave permanent residents of non-Chinese nationality the full right to work and live in Hong Kong, to travel outside Hong Kong and re-enter Hong Kong without any restriction; and
- The proposed amendments caused great hardship to those who had stayed in Hong Kong for less than seven years, especially those who lacked special knowledge and skills. They might not be able to obtain permission to stay in Hong Kong upon expiry of their current limit of stay, despite their commitment and contributions to Hong Kong.
Expatriate Inspectors Association
(Paper No. CB(2) 1397/96-97(01))
4.Referring to the Associations submission, Mr Martin CADMAN made the following points -
- The Association had been briefed but not consulted on the proposals. The Immigration Department and Security Branch officials presented the proposed changes as a fait accompli;
- The right to land was a statutory right which would rarely be repealed with retrospective effect. It was unreasonable to ask a person to give up an acquired right in exchange for something which he might not be able to achieve later, i.e. right of abode, since the eligibility criteria of which had yet to be determined by the Joint Liaison Group;
- The proposed amendment would make pensioners who might not be able to return to Hong Kong in the next 12 months losing immigration rights, and faced with difficulties to obtain free medical treatment and to live off the pension if they chose to reside in Hong Kong at a later stage; and
- If the present attempt to interfere with a statutory right was permitted, then foreign nationals who had acquired permanent residency status in Hong Kong through naturalisation as BDTCs or BNOs or through marriage to local residents might also be targeted in the future.
5.In response to members, Mr Christopher CHAN made the following points -
- His personal suggestion which had yet to be agreed by the Society was to allow those 22 000 British citizens who had acquired the right to land status to enter and stay in Hong Kong without restriction. Those 16 000 British citizens on a limit of stay should have the right to stay and work in Hong Kong unconditionally provided that they did not stay outside for an aggregate period of 12 months during three years after the implementation of the amendments ;
- The Society supported the abolition of the privileged immigration status of British citizens from the commencement of the Bill after enactment. It was however unfair to deprive a person of his legal or accrued right, especially when they had made contributions to the territory;
|| c.The legitimate expectation of British citizens vis-à-vis other foreign nationals was different. While a Briton had uprooted from Britain to settle in Hong Kong, he could not have foreseen that his immigration right would be removed overnight. On the other hand, a foreign national was well aware that his extension of stay in Hong Kong was at the discretion of the Director of Immigration. It was therefore unfair to deprive the 16 000 British citizens of their accrued right to land. The concept of accruing right and legitimate expectation was not new in law. He quoted a case whereby the Privy Council had decided on the principle that accruing rights could continue to accrue and should not be affected by legislation. In response to the Chairman, he agreed to provide relevant information on the case for members reference;|
- The Basic Law had made no provision to replace the right to land with the right of abode, nor did it mention British citizens residing in Hong Kong for not more than seven years had to leave Hong Kong. The 16 000 British citizens had the right to stay in Hong Kong and should not be subject to extension of stay that applied to other foreign nationals.
6.In response to members, Principal Assistant Secretary for Security (PAS for S) explained that the current procedures in respect of applying extensions of stay for British citizens and other foreign nationals were different. At present, British citizens were exempted from visa requirement. They could work, study and settle without restriction in Hong Kong. However, if a Briton was likely to become a burden on public funds, the Director of Immigration could consider whether to reject his application for extension of stay. Under the proposed changes, British citizens who were now working in Hong Kong would be granted extensions of stay according to normal policy, i.e. only if they possessed special skills, knowledge, qualification or experience of value to and not readily available in Hong Kong. Those who could not meet these criteria would probably have to leave after their current limit of stay expired. Crown Solicitor supplemented that under the 1-2-2-3 pattern, those who were currently on the fifth year of stay in Hong Kong would be able to get over the seven-year period, which meant that they would be eligible to apply for the right of abode under the Basic Law.
7.Mr IP Kwok-him pointed out that extensions of stay and unconditional stay were not granted as a matter of course. As those who had yet to complete seven years of residence were not entitled to the right to land, it was therefore illogical to say that they would be deprived of the right. As for those with the right to land status, they would be given the unconditional stay status under the proposed changes. He was of the view that the unconditional stay status would not cause unnecessary inconvenience to them as it was only a transitional arrangement lasting for about three months, after which they could apply for right of abode under Article 24 of the Basic Law.
8.At this juncture, Mr Christopher CHAN questioned why the right of abode status had to be applied for. He was of the view that since the right to land was given automatically after seven years of residence, the same arrangement should apply to right of abode. PAS for S explained that under Article 24(1)(2)(3)&(6) of the Basic Law, permanent residency was an entitlement for persons in these categories. Under Article 24(4)&(5), non-Chinese nationals had to meet three criteria before they could acquire permanent residency status. These were : they had entered Hong Kong with valid travel documents; they had ordinarily resided in Hong Kong for a continuous period of not less than seven years; and they had taken Hong Kong as their place of permanent residence before and after the establishment of the HKSAR. The onus was on the applicant to prove that he could fulfil the third criterion. Crown Solicitor commented that there was fundamental difference in the point of view between the Administration and the Society on the matter.
9.Mr Bruce LIU asked whether it was the view of the Society that those who were unsuccessful in applying for the right of abode should be allowed to retain the right to land and whether there was any legal basis for them to retain the status after the change of sovereignty. Mr Christopher CHAN replied that Article 24 made no reference to the right to land status. He was of the view that the persons concerned should be entitled to retain any right acquired or accrued by them over a long period of time.
10.In response to Mr Howard YOUNG, Assistant Director of Immigration clarified that the "R" coded identity cards were issued to British citizens who had the right to land in Hong Kong.
||11.In response to members, representatives of the Society agreed to provide as much information as possible on the profile of its 1,000 members who were non-ethnic Chinese. Miss Margaret NG said that it would be useful if the Society could assess from the public point of view the impact of losing experienced lawyers on the legal profession and the community.|
12.In response to the Chairman, Mr Martin CADMAN said that a lot of pensioners had retired to a third country. If they did not return to Hong Kong within 12 months from the date of implementation of the proposed changes, they would lose the unconditional stay status.
13.In response to Mr Howard YOUNG, PAS for S said that it would be difficult to assess at this stage whether the Immigration Department was able to handle all the applications for right of abode within a period 12 months. The cumulative total of foreign nationals who were eligible to apply for right of abode was about 72 000 including 22 000 British citizens. The number did not include the returning emigrants.
14.The Chairman thanked the deputations for their views.
II.Meeting with the Administration
Submission from Heung Yee Kuk
15.Referring members to a submission from the Heung Yee Kuk (HYK) (tabled at the meeting and circulated vide Paper No. CB(2) 1472/96-97(01)), Mr LAU Wong-fat said that HYK was concerned that descendants of indigenous villagers who had emigrated to Britain could no longer enter Hong Kong freely after the proposed changes were implemented. Under existing law, the definition of indigenous villager was not restricted by nationality. There was genuine need for the descendants to return to Hong Kong from time to time to pay tribute to their ancestors and to handle family business. He appealed to members to consider granting special treatment to this category of persons so that they could return to Hong Kong to work, study or to settle without restrictions.
16.PAS for S explained that majority of the first and second generation of indigenous villagers had BDTC status. They were therefore permanent residents of Hong Kong and had the right of abode. They would not be affected by the Bill. As regards the third generation, it would depend on individual cases.
17.Crown Solicitor supplemented that the Bill dealt with resident British citizens only. If a third generation of an indigenous villager born in UK had returned to reside in Hong Kong for a continuous period of seven years, he would be able to acquire the right of abode. He need not rely on the right to land. If he had not resided in Hong Kong continuously for seven years, he was not a resident British citizen and would not be affected by the Bill. The position of this category of persons would not be adversely affected by the Bill. The Chairman pointed out that under the new system, although this category of persons would be allowed visa-free stay of six months in Hong Kong, they would have to apply for visas in order to work or settle. The Crown Solicitor agreed but said that there was not a consequence of the Bill but a change in policy.
18.At the request of Mr LAU, members agreed to have a meeting with representatives of the Heung Yee Kuk at the next meeting to be held on 13 March 1997.
Position of the Bills Committee
19.In response to the Administration, the Chairman said that members had agreed the following at the last meeting on 1 March 1997-
- Those who had acquired the right to land should retain the right. The matter would be dealt with at a later stage, when the legislation on right of abode was in place;
- Those who were on a limit of stay would no longer be entitled to the right to land status from commencement of the Bill. Their applications for extension of stay and unconditional stay would be processed in accordance with the immigration policy applicable to other foreign nationals; and
- The right to land should be removed from legislation from the commencement of the Bill.
20.Miss Margaret NG said that at the last meeting, she had mentioned that the legitimate expectation of those British citizens who had lived in Hong Kong for five years or more would need to be considered. Having listened to the views of the Law Society of Hong Kong, she would need more time to form her own view on the matter. In response to Assistant Director of Immigration, Miss NG clarified that in addition to those British citizens who had been in Hong Kong for five years or more, she was also concerned about the 16 000 British citizens who were in the course of accruing the right to land status under the 1-2-2-3 pattern. She was at present researching on immigration legislation enacted in the UK in the past which would help her to consolidate her views on the matter.
21.Miss Christine LOH and Mr IP Kwok-him who were not present at the last meeting expressed reservations about the agreement reached by members at the meeting. In response to the Chairman, Mr IP said that he had reservation about (a).
22.Miss CHAN Yuen-han said that while she was in support of removing the right to land from those holding it, she had agreed at the last meeting that this could be dealt with at a later stage in order not to delay implementation of the other proposals.
23.Mrs Selina CHOW said that as far as the 16 000 British citizens were concerned, they had not been deprived of a statutory right because they had never attained one in the first place. She considered that the granting of unconditional stay status to this group of persons was an appropriate arrangement. Other than those who had already acquired the right to land, she disagreed that the right should be made available to any British citizens after the cut-off date. She reiterated her support to the position of the Bills Committee at the last meeting.
24.Mr Bruce LIU supported the decision made at the last meeting.
25.In response to Miss Margaret NGs concern, Crown Solicitor gave his opinion on legitimate expectation. He said that there was legal and quality difference between the status of right to land, and the status that a person had in the period of seven years while accruing that right. The person clearly did not have any right at that time other than the permission given by the Director of Immigration to land in Hong Kong. At present, it was a policy that the permission was unconditional, and policy was subject to change. The only expectation of a person given permission to land was that he would be permitted to stay during the period specified. To suggest that an "accruing right" was a legal right was legally incorrect.
||26.The Chairman asked the Administration to take note of members views on the subject and advise members of its position at the next meeting. |
III.Any other business
|Hon Christine LOH
||27.The Chairman referred members to Miss Christine LOHs paper entitled "Minimum safeguards against unfair deportation" (tabled and circulated vide Paper No. CB(2) 1525/96-97(01)). PAS for S was of the view that Miss LOHs proposal was not related to the Bill, and suggested that the topic be discussed in a different forum. After discussion, it was agreed that Miss LOH should seek legal advice on whether the proposal was within the scope of the Bill before discussion by the Bills Committee.|
III.Date of next meeting
28.The meeting agreed that in addition to the meeting on 13 March, an additional meeting should be scheduled at 10:45 am on 18 March 1997.
29.The meeting ended at 6:35 p.m.
Legislative Council Secretariat
30 May 1997
Last Updated on 6 Jun, 1997