LegCo Paper No. CB(2) 2157/96-97
Ref : CB2/BC/10/96
(These minutes have been seen
by the Administration)
Bills Committee on
Minutes of 5th meeting held on Tuesday, 25 March 1997 at 12:30 pm in Conference Room B of the Legislative Council
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Howard YOUNG, 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 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 T P WONG
- Assistant Director of Immigration (Special Duties)
- Mr Gilbert MO
- Senior Assistant Law Draftsman
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.Confirmation of minutes of meeting on 1 March 1997
The minutes were confirmed.
II.Meeting with the Administration
The Administrations proposal
(Paper No. CB(2) 1650/96-97(01))
2.Deputy Secretary for Security 2 (DS for S2) introduced the paper which was prepared in response to members views on how to deal with the right to land status of British citizens. He said that the Bills Committee had proposed that the Administration should deal with the right to land status in two stages. Firstly, from the date the Bill came into effect, British citizens who had not acquired the right to land should no longer be able to do so. Secondly, British citizens who already had the right to land should be allowed to keep it. Their status should be reviewed after legal provisions enabling non-Chinese nationals to acquire the right of abode under the Basic Law were in place. Members had also agreed to support early implementation of the administrative measures on visa policy and condition of stay.
3.DS for S2 explained the position of the Administration as follows-
- The Administration maintained the view that it was best to implement both the administrative and legislative measures for removing the privileged immigration status of British citizens in a package. However, having regard to the views of the Bills Committee, it agreed to implement the package in phases. It proposed to implement the administrative package first and defer consideration of the legislative package until a later stage when the right of abode issue was resolved by the Sino-British Joint Liaison Group;
- The Bills Committees proposal would split the legislative package into two parts, i.e. removing the future eligibility of British citizens who had resided in Hong Kong for less than seven years to the right to land, while deferring consideration of the right to land question in respect of those who had already acquired it. The arrangement was considered less desirable as it implemented only part of the legislative package and might cause confusion to the British community;
- The Administrations proposal was to implement the administrative package on 1 April 1997 while leaving the issue of right to land status intact. This had taken into consideration members view that standardized immigration policy should apply across-the-board to all foreign nationals; and
- The Administration maintained the view that the question of right to land should be dealt with before the transfer of sovereignty.
4.Miss Margaret NG was concerned about the Administrations proposal to implement the administrative package ahead of the legislative package. She questioned the propriety of using administrative measures to deprive a British citizen from attaining right to land before the provision for such right was repealed through legislative means. Her view was echoed by Mrs Selina CHOW. Miss CHAN Yuen-han was concerned about the differential treatment accorded to British citizens after implementation of the administrative measures on 1 April 1997.
5.In response to members, the Administration made the following points-
- When the administrative measures came into effect on 1 April 1997, British citizens should be allowed visa-free visits of six months. If they came for purposes such as employment, study or residence, they should apply for visas in the same manner as other foreign nationals, and the same criteria for approval should apply. The measures would only affect those who arrived in Hong Kong on or after 1 April 1997 and those who were on a limit of stay under the 1-2-2-3 pattern. However, those who were in the last stage of the 1-2-2-3 pattern would not be affected because they should have their stay extended for three years. As long as the law relating to right to land was not amended, those who had completed seven years of residence could apply for the right to land status, and those who had already acquired the right to land could retain it.
- The Director of Immigration was empowered to implement the proposed administrative measures under section 61(1) of the Ordinance. It was legally in order to implement the administrative package ahead of the legislative package;
- The number of British citizens who were on a limit of stay was about 16 000, but the Administration did not keep statistics on the number of those who were in the last stage of the 1-2-2-3 pattern; and
- The reason for selecting 1 April 1997 as the effective date was to minimize confusion caused to the British community as the Administration had earlier announced that changes to immigration status of British citizens would come into effect on 1 April 1997.
6.In response to members, the Legal Adviser said that it would appear that members were concerned about whether the Director of Immigration would exercise her discretionary power reasonably in granting extensions of stay to British citizens. From legal point of view, the discretionary power of the Director of Immigration was not without limit. The Director had to take into account the policies approved by the Government, and was subject to the directions of the Governor in the exercise of her powers under section 51 of the Ordinance. Any person who was aggrieved by the Directors decision could resort to legal action. As regards legitimate expectation of British citizens to acquire right to land, he referred members to the Crown Solicitors advice given at a previous meeting that an "accruing" right could not be regarded as a legal right. The Administrations proposal to implement the administrative package ahead of the legislative package was considered in order.
7.In response to Miss Margaret NG, DS for S2 said that the Bill, if enacted, would not take retrospective effect from 1 April 1997. The Administrative would need to move an amendment to change the effective date which was currently stated in the Bill to be on 1 April 1997.
Members views on the Administrations proposal
8.The Chairman said that it was within the power of the Administration to implement administrative measures which required no legislation. He invited members views on the Administrations proposal which was different from the one proposed by members.
9.While Mr IP Kwok-him reiterated his stand that the privileged immigration status of British citizens should be removed, he found the Administrations proposal to implement the administrative package first, pending outcome of the right of abode arrangements acceptable.
10.Mr Bruce LIU was in support of the Administrations proposal.
11.Miss CHAN Yuen-han considered the Administrations proposal acceptable. However, she noted that more British citizens would be able to acquire right to land as a result of the proposal. She reiterated her concern about the differential treatment accorded to British citizens.
12.Miss Margaret NG had reservation about implemention of the administrative package ahead of the legislative package. Given the Administrations stand that the issue had to be dealt with before the change of sovereignty, she was also concerned that very little time would be available for the British community to make preparation for changes by the time the right of abode issue was resolved. She maintained the view that those who had acquired the right to land should be allowed to retain it.
13.Mrs Selina CHOW was of the view that the Bills Committees proposal was a better option than the Administrations proposal. Nevertheless, she raised no strong objection to the latter proposal as implementation of the administrative measures was within the discretion of the Administration.
14.Members felt that a clear and concise message should be imparted to those affected by the new policy to avoid confusion. DS for S2 briefly outlined the measures to be taken to publicise the new administrative measures. These inclucled briefing sessions for local business communities; information pamphlets distributed through and posters displayed at immigration offices; advertisements placed in local and UK newspapers and setting up of a hotline to answer telephone enquiries.
15.In response to members, the Administration undertook to provide the following to members for reference -||Admin|
- press release and information pamphlet announcing the proposed administrative measures;
- action plan, if any, for implementation of the administrative package; and
- periodic progress report on enquiries handled by the Immigration Department as a result of the implementation of the administrative package.
16.On Miss Margaret NGs comment that the publicity drive should not be confined to organizations such as the British Trade Commission and the British Chamber of Commerce, the Chairman suggested that a list of organisations which had been invited by the Bills Committee for submissions should be forwarded to the Administration for reference and necessary action.
| 17.Members present raised no objection to the Administrations proposal to implement the administrative measures on 1 April 1997. Members agreed that the Bills Committee should hold consideration of the Bill in abeyance and should release its slot in the meantime. The Bills Committee would make a report on its deliberations and latest developments to the House Committee.
[Post meeting note : a report was made to House Committee on 11 April 1997.]
III.Matters arising from previous meetings
Hon Christine LOHs paper entitled "Minimum safeguards against unfair deportation"
(Papers Nos. CB(2) 1472/96-97 (07) and 1650/96-97 (02)&(03))
18.The Chairman advised that the President had ruled that Miss LOHs proposed amendments were out of order as they exceeded the scope of the relevant clauses of the Bill.
19.Members noted the paper provided by the Administration tabled at the meeting (circulated vide LegCo Paper Nos. CB(2) 1650/96-97(02)&(03)). Miss Margaret NG suggested and members agreed that Miss LOHs proposal should be referred to the Panel on Security for consideration.
Administrative arrangement for British citizens studying in public sector schools
(Paper No. CB(2) 1372/96-97(02))
20.DS for S2 informed members that British citizens who failed to extend their stay would not be able to stay in Hong Kong after their current limit of stay expired. In order not to cause hardship to their children who were studying in public sector schools, the Administration proposed that these children should be allowed to complete their secondary schooling. They would continue to be free to change schools during their primary and secondary schooling. However, if they would like to continue their tertiary education or enrol in other types of educational institution in Hong Kong, they would have to apply to the Immigration Department for change of status and their applications would be considered according to normal policy.
21.In response to the Chairman, the Administration said that as a general principle, British citizens who could not have their working visas extended would have to leave Hong Kong, irrespective of whether their children were allowed to continue their studies in the territory. If they were granted visa-free visits of six months, they would not be allowed to work on the ground that their children were studying in Hong Kong. Nevertheless, the Director of Immigration could exercise discretion in exceptional cases.
Arrangement for pensioners
(Paper No. CB(2) 1650/96-97(04))
22.DS for S2 briefly explained the paper tabled. Members noted that the concern of the pensioners was related to the right to land status, and agreed that the matter should be discussed at a later stage, if necessary.
Village representative elections
(Paper No. CB(2) 1650/96-97 (05))
23.Referring members to the paper tabled, AD(SD) said that the issue was raised by the Heung Yee Kuk New Territories.
24.The Chairman said that the issue was not related to the Bill. He suggested and members agreed that the matter should be referred to the Panel on Home Affairs for consideration.
25.The meeting ended at 2:20 pm.
Legislative Council Secretariat
5 May 1997
Last Updated on 6 Jun, 1997