PLC Paper No. CB(2) 30/97-98
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref. : CB2/PL/SE/1
LegCo Panel on Security
Minutes of Special Meeting held on Tuesday, 29 April 1997 at 4:30 pm in the Conference Room A of the Legislative Council Building
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Dr Hon Philip WONG Yu-hong
Hon Howard YOUNG, JP
Hon Andrew CHENG Kar-foo
Hon Albert HO Chun-yan
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Margaret NG
Members attending :
Dr Hon LEONG Che-hung, OBE,JP
Members absent :
Hon Fred LI Wah-ming*Public Officers attending :
Hon CHEUNG Man-kwong*
Hon Emily LAU Wai-hing*
Hon Zachary WONG Wai-yin*
Hon CHEUNG Hon-chung#
Dr Hon LAW Cheung-kwok#
Hon LO Suk-ching#
Hon TSANG Kin-shing#
Hon Lawrence YUM Sin-ling#
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2) 1
Staff in attendance :
- Mr Alan YU
- Senior Assistant Secretary (2) 1
I. Follow-up on permanent residency after 1997
(LegCo Paper No. CB(2) 2060/96-97(01))
1. At the request of the Chairman, Director of Immigration (D of I) elaborated on the following outstanding substantive issues for which there was no consensus between the two sides -
- The position of adopted children
Under the British Nationality Act, a child adopted by a British Dependent Territories Citizen (BDTC) would become a BDTC, thus acquiring the right of abode (ROA), if the adoption was approved by a court in Hong Kong. The Administration was concerned that this arrangement might be subject to abuse in relation to children in China who did not have one-way permits for entry to Hong Kong. It had therefore suggested that the status of adopted children should follow that of their natural and not adopted parents, unless the adoption was approved by Hong Kong courts.
- How will children born after 1 July 1997 to the ethnic minorities acquire the right of abode
This referred to children born to persons under Article 24 (2)(6) of the Basic Law who had the right of abode in the HKSAR. The Administration had suggested that these children should have ROA until they reached the age of 21, after which they had to requalify under the relevant criteria.
- Whether children born in Hong Kong to new immigrants from China should have the right of abode at birth
Under existing arrangements, new immigrants from China had to complete seven years residence in Hong Kong before they could acquire ROA. A possible option was for them to be exempted from this requirement in future so that their children would have ROA at birth.
No decision yet on future arrangement.
2. Mr Bruce LIU expressed concern about the lack of local legislation on ROA by 1 July 1997 as this would result in more confusion and appeals. D of I said that it would be ideal to have legislation in place by 1 July 1997. On that date, the Basic Law would come into effect. Article 24 of the Basic Law would provide the basic legal framework within which she could make her decisions on ROA matters. There should not be any problem for 5,500,000 ethnic Chinese permanent residents under Article 24(2) (1)-(3) of the Basic Law as they would continue to have ROA. For returning emigrants who chose to remain as Chinese citizens, 1 July 1997 would not affect their ROA. As for those returning emigrants who chose to be treated as foreign nationals, according to the recent announcement made by the Hong Kong and Macao Affairs Office of the State Council, they could retain their ROA if they returned to settle in Hong Kong within 18 months from 1 July 1997. With regard to those who were determined to be not entitled to ROA, they might appeal against the D of Is decision. Such appeals would, however, take some time to process. It was expected that domestic legislation would be enacted by the time the appeals came to be considered by the appropriate authority. She therefore did not envisage any major difficulty in implementing the Basic Law if there was no local legislation for a short period of a month or so.
3. Mr Howard YOUNG pointed out two issues of concern arising from the absence of legislation on 1 July 1997. Firstly, it was not clear how the D of I would deal with applications for ROA by people not of Chinese nationality under Article 24(2)(4) of the Basic Law. Secondly, according to his understanding, returning emigrants would, on 1 July 1997, automatically lose their Chinese nationality status on the basis of Article 9 of the Nationality Law of the Peoples Republic of China. In response to Mr YOUNGs comments, D of I said that many eligible foreign nationals were understandably keen to acquire their ROA. In applying for their ROA, these people would be required, among other things, to declare that they had taken Hong Kong as their place of permanent residence. The Immigration Department had prepared the necessary application forms. Consideration was being given to issuing them before 1 July 1997. The applications received would be processed after that date when the relevant legislation would have been enacted. D of I stressed that ROA and nationality were two separate matters although a persons nationality affected his entitlement to ROA. The application of Chinas Nationality Law in Hong Kong was not dealt with in the context of legislation on ROA. Annex III of the Basic Law listed a number of national laws to be applied locally with effect from 1 July 1997 by way of promulgation and these included the Chinese Nationality Law. Also, the Standing Committee of the Chinese National Peoples Congress passed an important piece of legislation, known as the "Interpretation of Chinese Nationality Law when applied to the HKSAR" in May 1996. In administering relevant provisions of Nationality Law, there was no need for local legislation, as in the case of the implementation of the 1981 British Nationality Act. On the issue of returning emigrants, they could apply to change their nationality by making a declaration of change of nationality to the Immigration Department after 30 June 1997. Those who had made that declaration would be treated as foreign nationals. Those who chose not to make that declaration would be treated as Chinese citizens irrespective of whatever travel documents they used on entering Hong Kong. D of I added that the Standing Committee of the Chinese National Peoples Congress had authorised the Immigration Department of the HKSAR to deal with all matters related to nationality. The Immigration Department would therefore make available four types of forms to enable people to change their nationality, to give up their Chinese nationality, to restore their Chinese nationality or to acquire Chinese nationality.
4. In reply to Mr IP Kwok-hims queries, Deputy Secretary for Security (2) (DS for S2) said that there were three aspects concerning the ROA issue, viz. the practical contents, the legislative body and the legislative process. Most of the issues relating to ROA had been resolved. The outstanding substantive issues for which there was no consensus between the two sides had been mentioned earlier by D of I. What was lacking at present was a legislative framework. Ideally, the relevant legislation should be passed by the present Legislative Council and be implemented by the SAR Government, like the issue of the Court of Final Appeal. However, the Chinese side insisted that the legislative process must begin in the Provisional Legislature before 1 July 1997. The Administrations stance was that any legislative process should not start before 1 July 1997 in order to avoid legal challenges to the laws passed by the provisional body. In the circumstances, the only option was for the Administration to put forward a Blue Bill on 30 June 1997 so that the SAR Legislature could complete the legislative process within a short time. In response to members enquiries, DS for S2 confirmed that the drafting of the Bill was being done by Attorney Generals Chambers but he had not yet seen the first draft.
5. Miss Margaret NG asked on what basis D of I exercised her authority after 1 July 1997 in the absence of any legislation on ROA and why she did not envisage any problem if no domestic legislation was in place for a month or so. DS for S2 pointed out that the Attorney General had stated on a number of occasions that on 1 July 1991 the Basic Law would enter into force. The ROA of permanent residents of the SAR would be provided for under Article 24 of the Basic Law. The Legislature of the SAR might enact legislation amending the Immigration Ordinance to provide in greater detail for the implementation of the Article. D of I said that in handling immigration matters related to ROA, she would rely on the Basic Law and the consensus reached with the Chinese side. As mentioned earlier, there would not be any problem in respect of more than 5,000,000 ethnic Chinese permanent residents. A problem might arise in the case of a child born to an illegal immigrant from China since the parent might chaim ROA for the child. This was an example of the few cases where detailed legislation was required to determine whether a person was entitled to ROA. As the appeal to D of Is decision might take several months to resolve, there would not be any serious problem if the relevant legislation could be enacted within a short period of a month or so. In the majority of cases where confirmation of a persons ROA was required, e.g. eligibility for public housing or medical treatment in public hospitals, she did not envisage any problem in the absence of relevant domestic legislation.
6. Mr Andrew CHENG pointed out the unfairness of a situation where a person was determined by D of I under Article 24 of the Basic Law to have no ROA on 1 July 1997 and his appeal was considered on the basis of the domestic legislation enacted sometime afterwards. D of I stressed that there would not be any legal vacuum after 1 July 1997 since the Basic Law would come into effect. Even if detailed domestic legislation was in place, it would take sometime before any appeal cases could be resolved. The number of cases where there would be difficulties in determining the eligibility for ROA would be very small, as in those cases mentioned earlier where there was no consensus between the two sides. In any event, the people concerned were not deprived of their ROA which they might claim to have before 1 July 1997. They would be given their ROA after 1 July 1997 if they satisfy the criteria laid down in the relevant provisions of the legislation to be enacted.
7. In reply to Mrs Selina CHOWs enquiries, DS for S2 confirmed that the first draft of the Bill on ROA was not yet available but the Administration aimed at gazetting the Blue Bill on 30 June 1997.
8. Mr IP Kwok-him moved the following motion -
The motion was supported by Mrs Selina CHOW, Mr Bruce LIU and Mr Howard YOUNG and opposed by Mr James TO, Miss Margaret NG and Mr Andrew CHENG. The motion was passed by four votes to three.
9. Miss Margaret NG said that she would move a motion at the Legislative Council sitting on 14 May 1997 urging the Administration to introduce a Blue Bill on the ROA for enactment by the Council before 1 July 1997.
II. Minimum safeguard against unfair deportation
(LegCo Paper No CB(2)1939/96-97(04)
LegCo Paper No CB(2)1939/96-97(05)
LegCo Paper No CB(2)1939/96-97(06)
LegCo Paper No CB(2)2001/96-97(03))
10. The Chairman said that the item had been referred to the Panel by the Bills Committee studying the Immigration (Amendment) Bill 1997.
11. Responding to Mrs Selina CHOWs enquiries, Principal Assistant Secretary for Security (PAS(S)) said that she did not have in hand detailed statistics concerning deportees appealing against deportation orders but would provide them after the meeting. However, in 1996 there was one case of judicial review involving three deportees and the Secretary for Securitys decision was subsequently overruled. In 1997, there was one case of judicial review pending court hearing. In recent years, the number of appeals under Section 53(1) of the Immigration Ordinance had averaged more than ten each year. No statistics had been kept on the number of foreign nationals who put forth their views or mitigating factors to the Director of Immigration after having been notified of intended recommendation for their deportation.
|12. The Chairman asked whether it was a question of resources for not agreeing to establish an independent tribunal type of organization to recommend the deportation of any foreign nationals. PAS(S) said that whilst resource was a factor for consideration, the main reason was that the existing system had been working satisfactorily. Moreover, no such arrangement existed in other countries like Britain or Australia. The Chairman requested the Administration to provide more information on the systems in other countries, with particular regard to safeguards and appeal rights against unfair deportation.||Adm
|13. Miss Margaret NG said that whilst deportation was not a serious problem at present, the situation might be different after 1 July 1997, particularly in view of the complexity arising from the issue of ROA. She therefore suggested that the issue of deportation should be taken into consideration when legislation concerning ROA was drafted.||Adm
|14. PAS(S) clarified that if a person considered that he had ROA and should not be deported, he could lodge an appeal to the independent Immigration Tribunal against the deportation order. A decision would be made by the Immigration Tribunal on whether the deportation should proceed. She stressed that a person would not be deported before his appeal was considered and a deportation order could be carried out anytime within the valid period. In reply to Miss Margaret NGs questions, PAS(S) confirmed that the decision of the Immigration Tribunal would be subject to judicial review. As to whether a deportation order would be withheld pending the decision of the Immigration Tribunal or the outcome of the judicial review, she undertook to respond in writing.|| Adm|
(Post-meeting note : PAS(S) clarified that if a person wishes to contest a deportation order, the appropriate means is to appeal to is the Registration of Persons Tribunal against the Director of Immigrations refusal to issue him with a permanent identity card. The Immigration Tribunal deals only with appeals against removal orders issued by the Director of Immigration.)
15. Members agreed to consider the Administrations written response to the points raised at the meeting before deciding whether the issue would be further discussed.
III. Visit by the Panel
16. The Chairman proposed and members agreed to observe the Guangdong -Hong Kong Coordinated Anti-illegal Immigrants Exercise at Sea to be conducted in mid-May 1997.
(Post-meeting note : The observation by the Panel took place on 16 May 97)
IV. Close of meeting
17. The meeting ended at 6:30 pm.
Provisional Legislative Council Secretariat
8 July 1997
* ..away from Hong Kong
# .. other commitments
Last Updated on 21 August 1998