Judgment of the Court of Final Appeal onIntroduction
the Certificate of Entitlement Scheme
The paper informs Members of the judgment of the Court of Final Appeal (CFA) on the Certificate of Entitlement (C of E) Scheme delivered on 29 January 1999 and our preliminary assessment of their implications. Background
2. Before 1 July 1997, persons covered by Article 24(3) of the Basic Law (BL) were not entitled to the right of abode (ROA) in Hong Kong. The BL is silent on the procedures by which persons may establish their entitlement to ROA in the HKSAR. The Immigration (Amendment) (No. 3) Ordinance ('the No.3 Ordinance') was enacted on 10 July 1997, with retrospective effect from 1 July 1997, to provide such procedures. This Ordinance, through introduction of the C of E Scheme, provided that a person's status as a permanent resident of the HKSAR under BL 24(3) could only be established by his/her holding, amongst other things, a valid travel document with a valid C of E affixed to it. Operationally it meant that persons who were born in the Mainland of Hong Kong permanent residents and claiming ROA in the HKSAR would have to apply in the Mainland for a One-way Permit (OWP) and a C of E in order to come to Hong Kong for settlement. An application for a OWP was also regarded as an application for a C of E, i.e. no separate application was required. The Mainland authorities would verify the identity of the applicants and their claimed relationship with their Hong Kong resident parents. Afterwards, the Mainland authorities referred C of E applications to the Immigration Department for processing. C of Es were issued by the Immigration Department in respect of cases successfully verified and were sent back to the Mainland authorities, which in turn issued an OWP affixed with a C of E to eligible persons for admission to Hong Kong. These arrangements ensured that those who claimed ROA in the HKSAR under BL 24(3) had to have that claim verified before entering the HKSAR.
3. To flesh out the ROA provisions set out in BL 24, the Immigration (Amendment)(No.2) Ordinance 1997 (No.2 Ordinance) was enacted to take effect on 1 July 1997. It stipulated, among other things, that for a person of Chinese nationality to be eligible for ROA under BL 24(3), at least one of his/her parents who is of Chinese nationality must be a permanent resident under BL 24(1) or BL 24(2) at the time of his/her birth. Another provision stipulated that in acquiring ROA under BL 24, a person born out of wedlock may only derive the status of a Hong Kong permanent resident from his/her mother, and not father, unless the mother and father subsequently married.Litigation
4. In two sets of test cases the constitutionality of the C of E Scheme and of certain aspects of the No.2 Ordinance were challenged. Four issues were put before the Court namely, the legality of the C of E Scheme, its retrospectivity, "born out of wedlock" issue and "at the time of birth" issue. The legality of the Provisional Legislative Council (PLC) was also challenged in the Court.
5. The legality of the C of E Scheme had been upheld by both the Court of First Instance (CFI) and the Court of Appeal (CA). On its retrospectivity, the CFI ruled that it was lawful. The CA considered that the Scheme should take effect on 1 July 1997, although it should not apply to pre-1 July 1997 arrivals. On the "at time of birth" issue, the CFI ruled that it was not consistent with BL 24(3), but the CA overturned that judgment. On "the born out of wedlock" issue, both Courts took the view that the restriction introduced on acquisition of ROA by the children born out of wedlock was unconstitutional. The legality of the PLC was only raised before the CA, which held it to be lawful.
6. As for the CFA, its hearing on the five issues was conducted on 6, 7, 8, 11 and 12 January 1999. Judgments were delivered on 29 January 1999.
CFA's Judgment Summary
7. The CFA upheld the legality of the C of E Scheme, but ruled against the requirement that a C of E must be affixed to a OWP. The CFA decided that this issue should not be referred to the Standing Committee of the National People's Congress. It also ruled that the C of E Scheme should have no retrospective effect, i.e. Mainland persons who arrived in Hong Kong before 10 July 1997 do not have to hold a C of E to establish their ROA. On the "at the time of birth" issue, the Court ruled that permanent status is not determined "at the time of birth", so that the status will be acquired by a child whose parent subsequently acquired ROA. On the "illegitimacy" issue, the CFA ruled that children born out of wedlock to a father who is a permanent resident are eligible for ROA. The CFA also took that the PLC was lawful and that the laws it passed including the Immigration (Amendment)(No.3) Ordinance 1997 which introduced the C of E Scheme were valid.
Judgment & Implications for Immigration from Mainland
C of E Scheme
8. In upholding the legality of the C of E Scheme, the CFA expressly stated that it is constitutional to require a ROA claimant to apply for and obtain a C of E from the Director of Immigration before entry; and to require the claimant to stay in the Mainland while applying for a C of E and while appealing against any refusal of the Director of Immigration to issue a C of E.
9. Accordingly, the C of E Scheme will continue to operate. Mainland residents who claim to have ROA will still have to obtain a C of E before they are entitled to enter and remain in Hong Kong as permanent residents, otherwise they remain subject to immigration control. C of E applications can only be made in the Mainland, not in Hong Kong. If persons claiming to be eligible enter Hong Kong through channels like Two-way Permit Scheme (for visiting relatives) and Group Tour Scheme (for sight-seeing) and then claim ROA without holding a C of E, we will not process these applications or verify their status and they have to leave by the expiry of their limit of stay. Otherwise, they are overstayers and subject to removal. Entrants who claim to have ROA under BL 24(3) without holding a C of E will be removed in accordance with the law. The Police and their counterparts in the Mainland will maintain vigilant boundary control against illegal entries.
10. Since the CFA also ruled that there should be no need to require the C of E to be affixed to a valid travel document (i.e. a OWP) to establish ROA under BL 24(3), we need to decide how to accept and process C of E applications and to work out the arrangements with the Mainland authorities for lawful and orderly entry of C of E holders. In this connection, the Director of Immigration held discussion with the Bureau of Exit-entry Administration (BEEA) on 1 February 1999 on arrangements to facilitate timely and lawful exit of C of E holders from the Mainland. It has been agreed that for the 13 000 eligible persons who have been issued with a C of E and who are remaining in the Mainland, arrangements will be made to facilitate their entry as a matter of priority. Under the existing Mainland law, Mainland residents are required to obtain the appropriate exit permits before leaving for Hong Kong, meaning that they will still need to obtain a OWP. But there will be no requirement on our part for the C of E to be affixed on a OWP.
11. We shall continue our discussion with the BEEA to work out the long term arrangements for the timely and lawful exit of C of E holders for settlement in Hong Kong in an orderly manner.
"At the time of birth" Issue
12. We are now looking into ways to come up with a reliable estimate on the number of persons who are or will be eligible for ROA in the wake of the CFA's judgment on the issue. Since there are no readily available updated data pertaining to persons who were born in the Mainland to Hong Kong residents, the Census and Statistics Department will shortly conduct a new household survey on the number of Mainland children and spouses of Hong Kong residents.
13. According to a survey conducted by the Census & Statistics Department from November 1995 to January 1996, there were about 320 000 persons who were born and still living in the Mainland at that time. Of them, about 200 000 (63%) were adults aged 20 or above. The remaining 120 000 (37%) were aged below 20. One or both of their parents were Hong Kong residents married in the Mainland, but the parents might or might not have acquired permanent resident status at the time these persons were born.
14. If they all enter Hong Kong for settlement and after they have satisfied the conditions of BL 24(2), i.e. having ordinarily resided in Hong Kong for a continuous period of seven years, their children will also become eligible persons.
15. How old these children will be at the time of their entry into Hong Kong depends on when their parents entered Hong Kong and how soon afterwards these children enter Hong Kong following seven years' ordinary residence of their parents in Hong Kong.
16. This pattern of acquisition of ROA will continue to pass on to future generations. Whether or not we need to arrange for their entry will depend on their place of birth. If they are born in Hong Kong, they will be Hong Kong permanent resident immediately after birth. If they are born in the Mainland, they will need to apply for a C of E before exercising their ROA after their parents have ordinarily resided in Hong Kong for seven years continuously. But irrespective of where their birth takes place, they would be permanent additions to our population.
17. But the 1995 survey findings are likely to be an underestimation, there being a number of limitations -
- the survey did not cover persons who did not have a regular home-base in Hong Kong. Others who were institutionalized (i.e. in hospitals or elderly homes etc) or lived on vessels were not covered either;
- children born out of wedlock were not included; and
- the sample size of the survey was only 9 265 households (with a response rate of 94.2%). Not all of the respondents had spouses or children in the Mainland.
"The born out of wedlock" Issue
18. The CFA has ruled that a person born out of wedlock to a father who is a permanent resident of Hong Kong shall have ROA. We do not have an estimate of the number of this category of persons. At present, there are 30-odd such persons amongst the ROA claimants remaining in Hong Kong. The Immigration Department will verify their claimed child-parent relation, taking into account all relevant evidence submitted by them including DNA test results. We understand that the Mainland authorities allow such children in the Mainland to come to Hong Kong for settlement if their ROA has been established by the Immigration Department.
19. Following the CFA's judgment on this issue, those ROA claimants who arrived in Hong Kong before 10 July 1997 are not subject to the C of E Scheme in exercising their ROA. If they satisfy the conditions of BL 24(3), they can remain in Hong Kong.
Status of the ROA Claimants in Hong Kong
20. At present, there are about 2 000 Mainland residents remaining in Hong Kong who claim ROA under BL 24(3) without going through the C of E Scheme. Of them, about 1 100 persons arrived before 10 July 1997 and have a prima facie case for claiming ROA. We will verify their status. The remaining entered Hong Kong after 10 July 1997 and they are therefore subject to the C of E Scheme.
Progress in Admission of Eligible Persons
21. Since the introduction of the C of E Scheme, around 43 000 eligible persons have been admitted to Hong Kong, representing an average daily arrival rate of 75. 40 000 of them are children aged below 20; the remaining 3 000 are aged 20 or above.
22. There will be no problem absorbing any additional demand for services arising from the 1 100 Mainland ROA claimants who would be entitled to remain in Hong Kong should their claim for ROA be established. However, given the sizeable increase in the number of eligible persons and the across-the-board impact of their entry on the provision of a wide range of services including education, employment, housing, social welfare, medical care, transportation and other infrastructure facilities, a special task force headed by the Chief Secretary of Administration will meet shortly to examine the implications and find solutions. Our aim is to facilitate the entry of eligible persons in an orderly manner which is in compliance with the CFA's judgment.
23. Legislative amendments are not necessary to give effect to the CFA's judgments. The passages of the No.2 and No.3 Ordinances which the CFA has declared unconstitutional and struck out are treated as if they were never in the Ordinances. We will however introduce a bill to update the Immigration Ordinance to reflect the CFA's judgment as soon as possible, and to make provisions for any measures or requirements which we may need to introduce to the implement the CFA's judgment. We will also re-issue the gazette notice by the Director of Immigration, which is not legislation, to specify the new procedures which applicants for a C of E will need to follow, once these procedures have been decided.
5 February 1999