LegCo Paper No. CB(2) 2498/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/10/96
Bills Committee on
Minutes of 4th meeting held on Thursday, 13 March 1997 at 8:45 am in Conference Room A of the Legislative Council
Members present :
Members absent :
Hon LAU Wong-fat, OBE, JPPublic officers attending :
Hon CHEUNG Hon-chung
- Ms Ingrid HO
- Principal Assistant Secretary for Security
- Mr T K LAI
- Assistant Director of Immigration (Special Assignment)
- Mr Gilbert MO
- Senior Assistant Law Draftsman
By invitation :
Heung Yee Kuk New Territories
- Mr LAM Wai-keung
- Mr LAM Kwok-yin
- Mr HO Sun-kuen
- Ex-Offico Executive Councillor
- Mr MAN Foo-tai
- Ex-Offico Executive Councillor
- Mr WONG Muk-lin
- Ordinary Executive Councillor
Clerk in attendance :
Staff in attendance :
- Mrs Percy MA,
- Chief Assistant Secretary (House Committee)
- Mr Jimmy MA,
- Legal Adviser
- Mrs Eleanor CHOW,
- Senior Assistant Secretary (House Committee)
I.Meeting with Heung Yee Kuk New Territories
(Paper No. 1525/96-97(01))
The Chairman welcomed representatives of the Heung Yee Kuk New Territories (HYK) and the Administration to the meeting.
2.At the invitation of the Chairman, representatives of HYK briefed members on their concerns about the Bill as set out in the submission tabled at the meeting (circulated vide LegCo Paper No. CB(2) 1525/96-97(01)). In gist, they were concerned about the proposal to repeal section 8 of the Immigration Ordinance (the Ordinance) which, if implemented, would deprive British passport holders who were descendants of local-born Hong Kong Chinese the right to land, the right of abode and the right to work. As the descendants maintained close connection with their families in Hong Kong and might choose to retire in the territory, HYK urged the Government to amend the Bill to preserve their existing rights. They emphasized that the issue was not unique to indigenous villagers, but a common concern for descendants of all those who had emigrated to UK.
3.In response to members and representatives of HYK, the Administration reiterated that the Bill sought to remove privileged immigration status of resident British citizens. Section 8 of the Ordinance covered British citizens who had the right to land in Hong Kong, and should have no significant bearing on descendants of indigenous villagers as majority of them had the right of abode status. They made the following points -
- The indigenous villagers and their descendants could be classified into the following categories:
- First generation - indigenous villagers born in Hong Kong and emigrated to the United Kingdom (UK);
- Second generation - children of (i) born in UK; and
- Third generation - grandchildren of (i) born in UK.
- Persons of the first generation were both British Dependent Territories citizens (BDTC) and permanent residents of Hong Kong and therefore had the right of abode. Although persons of the second generation were born outside Hong Kong, they would be BDTC by decent. They could enjoy the right of abode including the right to work, study and settle in Hong Kong without restriction. After 30 June 1997, when the Basic Law came into force, the first generation would have the right of abode in Hong Kong under BL 24(2)(1) and the second generation would have the right of abode under BL 24(2)(3) if both generations did not choose to make a declaration of change of nationality. Even if they chose to make a declaration of change of nationality, they would be able to keep either right of abode or the right to land. The first and second generations were therefore not affected by the Bill;
- As the British Dependent Territories citizenship could only be transmitted to one generation born outside a British Dependent Territory, persons of the third generation would not have the right of abode in Hong Kong automatically. The existing immigration policy would allow this group of persons to be exempt from visa requirement and conditions of stay when entering Hong Kong . However, when the proposed changes were implemented, they would be allowed visa-free visits of six months in Hong Kong and would have to apply for appropriate visas as other foreign nationals if they wished to work, study or settle in Hong Kong. The proposed repeal of the right to land provisions in the Ordinance would have no implication on them because if they had resided in Hong Kong for seven continuous years, they would be eligible to acquire the right of abode under the Basic Law.
4.In response to members and the Administration, representatives of HYK said that they were most concerned about the position of the second generation. Having listened to the Administrations explanation, they noted that the proposed repeal of section 8 of the Ordinance would have no adverse effects on them and that the Bill did not introduce any changes to alter the existing position of the third generation. They were however concerned about the following -
- the voting right of the returning descendants in the election of village representatives. They said that only permanent residents of Hong Kong had the right to vote. The Village Office together with the District Office would verify the eligibility of persons to register as voters. They questioned whether the returnees had the right to vote before their permanent resident status was verified by the Immigration Department; and
- the right of the returning descendants to work in Hong Kong, pending verification of their permanent resident status.
5.The Administration advised that upon the first arrival of a person of the second generation in Hong Kong, he should provide documentary proof of his permanent resident status for verification by the Immigration Department. Since the vetting procedure would take some time to complete, he would be given conditional stay upon entry to Hong Kong, although he might prove to be a permanent resident and was entitled to work, study or settle in the territory in the end. If his status as a permanent resident could be established, there would be no legal basis to prosecute him for working illegally during the transitional period because under section 2A(1)(b) of the Ordinance, he had the right "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".
6.The Chairman pointed out that although such a person had the right to work, the condition of stay imposed on his passport during the transitional period might deter him from securing a job. He asked the Administration to consider appropriate action to resolve the practical problem. Mrs Selina CHOW was of the view that if a returnee was a permanent resident, there was no legal basis to deprive him from the right to vote, unless he had not been registered as a voter.
|7.In response to the Chairman, the Administration agreed to consider Mr Bruce LIUs proposal to shorten the process of verification of permanent resident status by allowing a person to submit documentary proof by post well in advance of his first return to Hong Kong. The Administration also undertook to provide information on the procedure of rural elections.
II.Hon Christine LOHs paper entitled " Minimum safeguards against unfair deportation"
(Paper No. CB(2) 1472/96-97 ( 07))
8.The Chairman informed members that the initial advice from the Legal Adviser was that Miss Christine LOHs proposal was related to provisions on deportation procedures sought to be amended by the Bill. He therefore agreed to include the item into the agenda.
9.Miss Christine LOH advised members that she had already submitted the proposed amendment to the President for a private ruling on whether it was relevant to the subject matter of the Bill.
10.The Legal Adviser said that it was the function of a Bills Committee to discuss issues relevant to the Bill. The President, in making his ruling on whether an amendment was in order, would take into account Standing Order No. 45(4)(a) which stipulated that "an amendment must be relevant to the subject matter of the Bill and to the subject matter of the clause to which it relates". The Bill had three main objectives -
- to remove the right to land currently enjoyed by British citizens;
- to abolish the procedures applicable only to the removal or deportation of British citizens; and
- to make transitional provisions.
Although Miss Christine LOHs proposal was related to (b) above, it had extended the scope to cover other foreign nationals. In his personal opinion, the proposal was out with the purpose of the Bill which only dealt with the removal of the privileged immigration status of British citizens.
11.The Chairman pointed out that Miss LOHs proposal had raised new issues which would require further deliberations by the Bills Committee, hence might cause delay to the scrutiny of the Bill. He invited members view as to whether the Bills Committee should at this stage continue discussion on the subject, pending the outcome of the Presidents ruling.
12.Miss Margaret NG said that she did not share the Legal Advisers personal opinion. According to the explanatory memorandum of the Bill, the purpose of the Bill was very broad. It sought to amend the Ordinance to bring the immigration status of the resident British citizens and residents UK belongers into line with those of citizens of other countries. She said that Miss LOH had raised a very important issue which warranted deliberation by the Bills Committee.
13.Miss CHAN Yuen-han said that members had previously agreed that the Immigration (Amendment) (No. 2) Bill introduced by her should be studied by a separate Bills Committee, in order not to delay the scrutiny of this Bill. Based on the same principle, she opined that Miss LOHs proposal should be dealt with separately. Her view was supported by Mr IP Kwok-him.
14.Mrs Selina CHOW and Mr Howard YOUNG opined that the scope of Miss LOHs proposal was wider than that of the Bill. They suggested that consideration of the proposal should be held in abeyance, pending the Presidents ruling.
15.In response to the Chairman, Principal Assistant Secretary for Security (PAS for S) said that Miss Christine LOHs proposal introduced new subject matter which should be discussed in a different forum.
16.In response to the Chairman, Miss Christine LOH said that as the proposal had only come to her mind up when she commenced study of the Bill, the Panel on Security was not consulted. If her proposal was ruled out of order by the President, she would consider introducing a Members Bill and would brief the Panel on Security on the legislative proposal.
17.Having regard to the tight timetable faced by the Bills Committee, the Chairman suggested and members agreed that Miss LOH could brief members on her proposal at this meeting.
18.Referring to the paper, Miss LOH pointed out that British citizens currently enjoyed more deportation safeguards than other foreign immigrants. The proposed amendment, as set out in paragraphs (8) and (9) of the paper, sought to extend the existing deportation policy applicable to British citizens to all lawful immigrants in Hong Kong.
19.In response to members, the Administration explained the current deportation procedures in respect of British citizens and other foreign nationals as follows-
Immigrants other than British citizens
(a) Section 20(1) of the Ordinance empowered the Governor to make a deportation order against an immigrant other than a British citizens, if he had been found guilty in Hong Kong of an offence punishable for not less than 2 years imprisonment, or the Governor deemed it conducive to the public good. The procedural safeguards against deportation of foreign nationals were as follows -
- Before the Director of Immigration recommended the deportation of any foreign national to the Secretary for Security, the intended deportee would be given seven days to put forth his view or any mitigating factors he had on his case. His representation together with a report from the Director of Immigration would be submitted to the Secretary for Security for a decision on whether a deportation order should be issued;
- A deportee could request for a review of the Secretary for Securitys decision. In that case, the Secretary for Securitys decision would be reviewed by the Chief Secretary. If the deportee requested for a review of the Chief Secretarys decision, the case would be submitted to the Governor for consideration;
- A deportee who was aggrieved by the Secretary for Securitys decision to deport him could lodge a statutory objection against that decision under section 53(1) of the Ordinance. The objection would be considered by the Governor-in-Council; and
- A deportee could also seek judicial review against the Secretary for Securitys decision.
British citizens on a limit of stay
(b) British citizens who did not have the right to land status might be deported on the same ground as mentioned in (a) above, but the deportation could only proceed on the recommendation of a court; or after consideration of the report of a Deportation Tribunal (DT), or where the Governor certified that the case concerned the security of Hong Kong or the relations of Her Majestys Government in the UK with another country. The procedural safeguards against deportation were as follows:
- Where it was proposed that a deportation order should be made against a British citizen and the Governor had not certified that the case concerned the security of Hong Kong or the relations of Her Majestys Government in the UK with another country, a DT would be appointed to hold an inquiry on the case;
- After the inquiry, the DT would make a report to the Secretary for Security stating whether or not in its opinion a deportation order should be made; and
- Other safeguards against deportation were the same as those mentioned in (a)(ii)-(iv) above; and
Resident British citizens (with right to land)
(c) For British citizens with right to land, they could only be deported if the Governor deemed such deportation to be conducive to the public good on the ground that their departure from Hong Kong was necessary in the interests of the security of Hong Kong or for political reasons affecting the relations of Her Majestys Government in the UK with another country.
20.PAS for S summarized that the major difference in deportation procedures between British citizens and other foreign nationals was that a deportation order in respect of the former was recommended by a DT, whereas that of the latter was recommended by the Director of Immigration. In the case of British citizens who had the right to land, it was a decision for the Governor. The special deportation arrangement for British citizens was a result of the special constitutional relationship between Hong Kong and UK.
21.Miss Margaret NG said that it was obvious that the deportation procedures for British citizens which involved a court or a DT would offer more safeguards and allow more time for an aggrieved person to appeal against the decision. On the deportation procedure for other immigrants, unless there was evidence showing that grave injustice and unfairness were involved, it would be difficult for an aggrieved person to seek judicial review.
22.Mr LEE Cheuk-yan commented that the Administration should consider adopting the special deportation procedures for British citizens for all immigrants, instead of vice versa. PAS for S responded that the Administration considered that the current deportation procedures for foreign nationals provided sufficient safeguards and should therefore be adopted for all foreign nationals including British citizens.
23.On the functions of a DT, the Administration explained that every DT consisted of a judge, who was the president of the DT, and two other members selected by the Chief Justice from a panel appointed by the Governor. Members of the DT were appointed as and when a case arose. The DT would consider any information relevant to the case. In almost all cases in the past, the Secretary for Security had adopted the recommendation of DT. Members requested the Administration to provide the following -||Admin|
- information relating to overseas countries which were provided with DT or tribunals with similar functions;
- number of cases handled by DT under section 23 of Cap 115;
- of (b), number of cases DT recommended that a deportation order should be made; and
- of (c), number of cases which the Secretary for Security had decided against DTs recommendation.
(Post meeting note: The President ruled on 19 March 1997 that Miss Christine LOHs proposed amendments were out of order because they exceeded the scope of the relevant clauses in the Bill.)
III.Right to land
24.In response to the Chairman, PAS for S said that the Administration would advise its position on members proposal to deal with the right to land status of British citizens at the next meeting. Meanwhile, she requested members to clarify their stance on the issue.
25.Mr IP Kwok-him said that he had reservation about the proposal to allow the 22 000 British citizens to retain the right to land status and to deal with the issue at a later stage. He was of the view that the right to land should be abolished once and for all. He inclined to support the Administrations proposed changes.
26.Miss Margaret NG said that at the last meeting she was concerned about the legitimate expectation of those British citizens on a limit of stay in Hong Kong to acquire the right to land status. Having sought legal opinion from highly esteemed lawyers and deliberated on the concept of "accruing right", she supported the Administrations proposal that British citizens who were currently on a limit of stay should be given the unconditional stay status upon completion of seven continuous residence in Hong Kong. However, she maintained the view that those who had acquired the right to land should retain the right.
IV.Date of next meeting
27.The next meeting would be held on 18 March 1997.
(Post meeting note: At the request of the Administration and with the concurrence of the Chairman, the meeting was rescheduled to 25 March 1997.)
28.The meeting ended at 10:37 am
Legislative Council Secretariat
30 May 1997
Last Updated on 6 Jun, 1997