PLC Paper No. LS 87
Paper for the House Committee Meeting
of the Provisional Legislative Council on 23 January 1998
Legal Service Division Report on
Immigration (Amendment) Bill 1998
Object of the Bill
- To disapply the special provisions now applicable only to Vietnamese arriving in Hong Kong;
- To clarify the powers relating to detention of persons pending removal from Hong Kong; and
- To empower Assistant Directors of Immigration to exercise the powers to make removal orders and order detention that are currently exercisable only by the Director of Immigration and his Deputy.
PLC Brief Reference
2. PLC Brief on the Bill, to be read in conjunction with PLC Brief entitled "Vietnamese Refugees/Vietnamese Migrants/Vietnamese Illegal Immigrants: The Way Forward", both issued by the Security Bureau and dated 8 January 1998 (misprinted as 1988 in the latter Brief).
Date of First Reading
3. 14 January 1998.
4. Part III of the Immigration Ordinance (Cap. 115) contains special provisions dealing with unauthorized arrivals from Vietnam, allowing for detention, screening and review of screening decision in line with the "port of first asylum policy". As a result of the decision to abolish that policy, the Bill therefore proposes to disapply those provisions to all future arrivals from Vietnam. However, to deter any surge of arrivals before the legislative changes could be made, the Bill proposes to take retrospective effect from its gazette date, i.e. 9 January 1998.
5. The effect of the disapplication of Part III would mean that future arrivals from Vietnam would be treated in the same way as illegal immigrants from any other country, to whom the general provisions of the Ordinance apply uniformly.
6. As a result, the Bill also seeks to clarify those general provisions relating to detention pending removal. "Pending removal" for that purpose will now be made to expressly include awaiting the response of the country to which the detainee is to be removed. It will further be specified that the power of detention will be limited to pending removal from Hong Kong only. A court will not be prevented from determining that a person has been detained for an unreasonable period, but it will be required, in deciding whether a period of detention is reasonable, to take into account the extent to which it is possible to make arrangements to effect removal and whether the detainee has declined removal arrangements. These clarifications are in fact lifted from similar provisions relating to detention pending removal that now apply only to arrivals from Vietnam.
7. A more technical change is the proposal to allow the powers to make removal orders and to order detention, where they are now exercisable only by the Director of Immigration and his Deputy, to be exercisable by any Assistant Director. The intention is to relieve the burden now placed upon the Director and his Deputy.
8. According to the PLC Brief on the Bill, no public consultation has been carried out by the Administration.
Consultation with Panel
9. The Panel on Security was briefed on the way forward on unauthorized arrivals from Vietnam and had discussions on some policy issues at its meeting on 8 January 1998.
10. In view of the importance of the policy issues involved, Members may wish to form a Bills Committee to have the opportunity to look at both the policy and practical aspects of the proposals in the Bill.
11. Some clarification on the drafting is being sought in the meantime from the Administration.
CHEUNG Ping-kam, Arthur
Assistant Legal Adviser
Provisional Legislative Council Secretariat
21 January 1998