LegCo Paper No. CB(2) 1775/96-97
Ref : CB2/BC/10/96
(These minutes have been seen by the Administration)
Bills Committee on
Minutes of 1st meeting held on Tuesday, 25 February 1997 at 2:30 pm.
in the Legislative Council Chamber
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon CHAN Yuen-han
Hon IP Kwok-him
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 LEE Cheuk-yan
Hon Paul CHENG Ming-fun
Hon CHEUNG Hon-chung
Public officers attending :
- Mr Alex FONG
- Deputy Secretary for Security 2
- Mr K Y MAK
- Assistant Director of Immigration (Control and Investigation)
- 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
- Ms Anita HO,
- Assistant Legal Adviser 5
- Mrs Eleanor CHOW,
- Senior Assistant Secretary(House Committee)
I.Election of Chairman
Mr James TO was elected Chairman of the Bills Committee.
||2.The Chairman said that some members were concerned about the scope of the consultation conducted by the Administration which was confined to trade and business organizations. In view of the implications of the Bill on British citizens, members agreed, after discussion, that the following courses of action should be taken -|
- advertisements should be placed in two local newspapers (in both English and Chinese) to invite submissions on the Bill;
- the following bodies/organizations should be invited by the Bills Committee to give their views/further views on the Bill :
- professional bodies and organizations;
- the bodies/organizations which had been consulted by the Administration; and
- Hong Kong Tourist Association and Community Advice Bureau suggested by individual members.
III.Meeting with the Administration
3.The Chairman welcomed representatives of the Administration to the meeting. He said that the Subcommittee formed to study the Immigration (Amendment) Bill 1997 and Immigration (Amendment) (No 2) Bill 1997 (the Subcommittee) was dissolved and that this Bills Committee would take over the scrutiny of the Immigration (Amendment) Bill 1997.
4.At the invitation of the Chairman, Deputy Secretary for Security 2 (DS for S2) and Assistant Director of Immigration (Special Duties) (AD(SD)), introduced the following information papers (tabled at the meeting and circulated vide LegCo Paper No CB(2) 1213/96-97 dated 27 February 1997) prepared in response to the request of the Subcommittee at its meeting on 20 February 1997 -
(a)A comparison of the existing and proposed immigration status enjoyed by British citizens vis-à-vis other foreign nationals
(Paper No. CB(2) 1333/96-97(01))
5.The Administration proposed to bring the treatment of British citizens in line with that of other foreign nationals. In gist, while they would continue to be allowed visa-free visits, the period of stay would be reduced from 12 months to six months, and the "visitor" condition would be imposed so that they could not work, study or remain in Hong Kong for settlement purpose.
(b) Procedures for applying unconditional stay status
(Paper No. CB(2) 1333/96-97(02))
6.Under the existing Immigration Ordinance, only Hong Kong permanent residents with the right of abode in Hong Kong and British citizens who had lived in Hong Kong continuously for seven years with the right to land in Hong Kong had a legal right to enter and remain in Hong Kong and not to have any condition of stay imposed on them. All other persons required the permission of an immigration officer/assistant to land in Hong Kong, and a limit of stay and other conditions of stay might also be imposed on them. After completing seven years residence in Hong Kong, a person could apply for "unconditional stay" by submitting the usual application form for extension of stay. If the application was approved, the applicants condition of stay would be cancelled. That was so called the "unconditional stay" status. The unconditional stay status was not a legal right and the permission given to a person to land or remain in Hong Kong should expire on the departure of that person. However, as an administrative policy, a person granted the unconditional stay status would be allowed to resume this status if he returned to Hong Kong within 12 months. Example of the stamps used to impose a condition of stay and to illustrate the unconditional stay status were attached at Annex to the paper.
(c)Details of immigration authorities in other overseas countries which have similar discretion (i.e. under section 61(2) of the Immigration Ordinance)
(Paper No. CB(2) 1333/96-97(03))
||7.Due to the tight time frame, the Administration had only obtained verbal advice from the Australian Consulate General and the Commission for Canada which had advised that the immigration authorities of these two countries had discretion to waive visas. The Chairman suggested that more information such as whether there were any restrictions on such power should also be provided.|
|| 8.On information requested on the cases exempted by the Director of Immigration under section 61(2) of the Immigration Ordinance in the past five years, DS for S2 said that the Administration would need time to collate the statistics and would provide details once available.|
Right to land
9.In response to members on the subject of the right to land, DS for S2 made the following points-
- At present, British citizens enjoyed privileges in immigration status mainly because of the special constitutional relationship between Hong Kong and the United Kingdom (UK). The statutory right to land was one of the elements of the privileged status. The Bill proposed that British citizens enjoying this right in Hong Kong would be given the unconditional stay status instead. This would bring them on par with, but not in a disadvantaged position vis-à-vis other foreign nationals.
- The differences between the right to land and unconditional stay were: the former was a statutory right; those with the right were free from any conditions of stay; and were subject to special removal and deportation arrangements, whereas the latter was an administrative measure; those with the status were required to return to Hong Kong within 12 months after departure in order to retain this status; and the deportation arrangements were more simple.
- When the right of abode provisions in the Basic Law were implemented in Hong Kong, British citizens who could show that they had resided in Hong Kong for seven years continuously would be eligible to acquire the right of abode under Article 24(2)(4) of the Basic Law. As details of the arrangements for acquiring the right of abode for non-Chinese nationals were still under discussion at the Sino-British Joint Liaison Group (JLG), and in view of the need for introducing measures to deal with the question of the privileged immigration status of British citizens before 1 July 1997, the Administration came up with a package of proposed changes. Those who were eligible to acquire the right of abode would have available an alternative which was superior to their current status when the domestic legislation to implement Article 24 of the Basic Law was in place. In other words, the downgrading of these peoples status was only for a short period of time.
10.Miss Margaret NG said that while it was acceptable for a legal right previously enjoyed by British citizens be no longer made available to them after a cut-off date such as upon the change of sovereignty, it would be unfair if the right already acquired under the law should be taken away from these people. She queried whether it was appropriate to replace the statutory right to land status with the unconditional stay status since the latter was not a legal right but granted at the discretion of the immigration authorities, and would expire after a person had left Hong Kong for more than 12 months. She did not agree on moral ground that it was appropriate to remove an acquired statutory right through legislative process. Mrs Selina CHOW concurred with Miss NGs view and asked the Administration to consider allowing British citizens who had acquired the right to land status before 1 April 1997 to retain such status. She was also concerned whether the question of retrospectivity would arise if an existing right was removed as proposed under the Bill. The Chairman supplemented that the cumulative number of people in this category was only about 22 000, and the number would decrease with the lapse of time.
11.DS for S2 made the following comments -
- During the consultation conducted by the Administration, two options were suggested to deal with the subject of the right to land, i.e. to allow those who had acquired the right to land status to retain this status, or to abolish this status and replace it with the unconditional stay status. The Administration decided to adopt the latter option and believed that unconditional stay was the most appropriate status to be given to British citizens who now enjoyed the right to land because it was a status closest to the legal status being taken away. This approach was also a tidy and clean way of settling the matter once and for all and left no room for uncertainty beyond 1 July 1997.
- According to legal advice, there were precedents in British nationality and immigration legislation where new legislation enacted had no effect on those with existing rights. There were also precedents where legislation had been enacted to remove or change existing rights. The important point was whether the right was removed through legislative process. What the Bill now proposed was not simply to abolish the right to land, but to replace it with unconditional stay. Moreover, as the right to land enjoyed by British citizens reflected the special relationship between UK and Hong Kong, it was only logical to remove this status when the special relationship ceased.
|| 12.Miss Margaret NG suggested the Administration to reconsider its position on the right to land by making reference to British nationality and immigration legislation enacted in the UK in the past which had allowed persons to retain existing statutory rights.|
13.In response to Mr Bruce LIU on whether the 12 months absence allowed under the unconditional stay status was too short, AD(SD) said that a person granted the unconditional stay status would be allowed to resume this status if he returned to Hong Kong within 12 months after departure. Exceptional cases would be considered on individual merit. There had been no application for extension of this period in the past few years.
14.The Chairman asked whether the unconditional stay status could be changed to a statutory right to address members concern. Mr Bruce LIU also suggested an alternative to the Chairmans suggestion. He asked whether the period of 12 months allowed for a person with unconditional stay status to return to Hong Kong after departure could be extended to a longer period, say, 12 years or more so that unconditional stay, albeit an administrative measure, could be regarded as more equivalent to the right to land.
15.DS for S2 said that there were four types of immigration status under the existing system i.e. the right of abode, the right to land, the unconditional stay status and lastly, the conditional stay status. The unconditional stay status was an administrative measure, not a right. He pointed out that the suggestions made by both the Chairman and Mr LIU would change the fundamental basis of the long-established system of immigration control and involved policy issues, hence required detailed deliberations. Given the need to deal with the privileged immigration status of British citizens before the change of sovereignty, it would be undesirable to complicate the matter by introducing amendments to the Bill which would change the fundamental basis of the immigration policy. This would also go against the objective of members to accord priority to this Bill to enable early implementation of the proposed changes. British community had also expressed concern that any changes proposed should be put in place in advance of 1 July 1997, so that those affected would be given a reasonable period of time to make adjustments.
16.Mr IP Kwok-him said that there was historical reason for British citizens to be entitled to privileged immigration status in Hong Kong. These privileges should be removed when UK was no longer the sovereign power of Hong Kong. He disagreed that those who had acquired the right to land status should be allowed to keep the status.
17.In response to the Chairman on the number of the 22,000 British citizens who would be eligible to apply for the right of abode under the Basic Law, DS for S2 said that this would depend on the outcome of discussion of the JLG on the eligibility criteria for the right of abode. The Government did not keep statistics on the number of these people who were in Hong Kong at present. Miss Margaret NG said that it was a matter of principle that the existing right of these persons should not be removed, irrespective of the number involved.
18.In response to Mr IP Kwok-him, AD(SD) said that under Article 24(4) of the Basic Law, persons not of Chinese nationality who had entered Hong Kong with valid travel documents, had ordinarily resided in Hong Kong for a continuous period of not less than seven years and had taken Hong Kong as their place of permanent residence before or after the establishment of the HKSAR would be eligible for the right of abode.
|| 19.Mr Bruce LIU asked whether the proposal to allow British citizens who had acquired the right to land status to retain the status after 1 July 1997 would be in breach of the Basic Law. DS for S2 said that Article 24 made no reference to the right to land status provision in the Immigration Ordinance. He agreed to seek legal advice on this point.|
20.The Chairman requested the Administration to consider the views expressed by members on the subject.
21.In response to Mrs Selina CHOW, DS for S2 said that at present, only nationals of 23 out of a total of 170 countries and territories were required to obtain a visa to visit Hong Kong. The visa-free period given ranged from seven days to three months. Taking into account the liberal visa regime in respect of visitors operated by Hong Kong, the constitutional links between UK and Hong Kong and the six-month visa-free stay given for BNO/SAR passport holders by UK, the Administration considered the proposed visa-free stay of six months for British citizens reasonable. Other than this aspect, the conditions of stay to be imposed on British citizens who wished to come to Hong Kong to work, study or settle would be the same as those for other foreign nationals.
22.The Chairman asked whether there was any difference in the time taken to process an application for residence visa on ground of marriage between an applicant from an European country and an Asian country, and in the quota allocated for this type of visa. AD(SD) said that except China where a One-Way Permit system was operated, no quota was imposed on other countries. As regards the time taken in processing applications, the average processing time was about 4-6 weeks. The actual time taken would depend on the circumstances of individual cases.
|| 23.Mrs Selina CHOW asked whether the Administration would consider advising a visitor entering Hong Kong that he was not permitted to work by placing a stamp bearing the wording "employment prohibited" in his travel document. AD(SD) said that foreign nationals seeking to work in Hong Kong had to apply for an employment visa before entry. In the past, specific endorsements were made in passports of visitors prohibiting them to work, study and establish a business in Hong Kong. However, in view of the number of complaints about the size of the endorsement, a new condition of stay stamp of smaller size was introduced in April 1972. At the same time, the various conditions of stay imposed on foreigners were defined in the Immigration Regulations to obviate the necessity of more comprehensive wording of the endorsement. Posters were also displayed at control points to explain the meaning of the conditions of stay to foreign visitors. DS for S2 supplemented that there had been no difficulty in taking enforcement actions against those who had entered Hong Kong to work without permission in the past. Mrs CHOW felt that visitors should somehow be advised of their conditions of stay and asked the Administration to reconsider the matter.|
24.In response to the Chairman, DS for S2 said that apart from the proposed transitional arrangements stipulated in paragraph 11 of the Legislative Council Brief, paragraph 1(f) concerning schooling for British citizen children was also relevant. He explained that some British citizens who could not meet the normal immigration policy for extension of stay would have to leave Hong Kong. If they preferred to allow their children to continue their studies in Hong Kong, in accordance with the existing policy on entry for education their children would have to change to private independent schools if they were now studying in public sector schools. In order not to disrupt their studies, the Government had decided that these children should continue to be allowed to study in public sector schools until they completed their secondary education. Detailed administrative arrangements would be worked out by the Director of Education and the Director of Immigration.
25.Members asked the Administration to clarify the following -
- whether the transitional arrangements would apply to students receiving tertiary education, and if so, whether they would be regarded as local students or non-local students;
- whether students currently studying in primary and secondary schools were allowed to continue their studies in tertiary institutions; and
- whether students were allowed to change schools.
||DS for S2 agreed to provide the information in writing.|
26.In response to the Chairman, DS for S2 and AD(SD) said that if British citizens who had come to work in Hong Kong before 1 April 1997, and who had not completed seven years residence, could continue to do so until their current limit of stay expired. They could apply for extension of stay under the 1-2-2-3 pattern within four weeks before expiry of the current limit of stay. If the end date of their limit of stay was before 1 April 1997, their applications would be processed under existing policy. If the end date of their limit of stay was after 1 April 1997, their applications would be processed under the new system i.e. the same criteria for approval for other foreign nationals should apply. This would apply regardless of the duration of the employment contracts they had already signed with their employers.
|| 27.Miss Margaret NG asked for the definition of "British citizens" referred to in section 1(1) of Schedule 3 of the Bill (Clause 23) and the basis for the definition. AD(SD) replied that the term was not defined in the Immigration Ordinance. The Chairman asked the Administration to provide the information in writing.|
28.The Legal Adviser stated that under section 7 of the Electoral Provisions Ordinance (Cap 367), any person who had been ordinarily resident in Hong Kong for seven years might register as a voter. He asked whether the provisions of the Bill would affect British citizens right to be registered as electors. AD(SD) replied that as their eligibility to register as voters was determined by their length of residence in Hong Kong and not the right to land status, their right to vote would not be affected.
29.The Chairman said that if the Administrations proposed implementation date of 1 April 1997 was adhered to, the Bills Committee would have to report to the House Committee on 7 March 1997 in order for the Bill to have Second Reading debate resumed at the sitting on 19 March 1997, the last sitting in March. In view of the tight time frame and the need for the Bills Committee to receive deputations, if any, and to consider submissions received, he requested the Administration to defer the date for implementing the new system. Members discussed and agreed to the following timetable-
|Report to the House Committee||21 March 1997
|Resumption of Second Reading debate|| ||9 & 10 April 1997
30.In response to the Chairman, Senior Assistant Law Draftsman advised that the Bill, if passed at the sitting on 9 & 10 April 1997, could be enacted on 18 April 1997. The Administration noted the proposed timetable.
V.Dates of subsequent meetings
31.Members agreed that the next two meetings would be scheduled as follows -
(a) Saturday, 1 March 1997 at 8:30 am; and
(b) Friday, 7 March 1997 at 4:30 pm.
32.The meeting ended at 4:45 pm.
Legislative Council Secretariat
1 March 1997
Last Updated on 5 Jun, 1997