Right of abode in Hong Kong

The right of abode in Hong Kong is the right to legally reside in Hong Kong without any limit or condition of stay being imposed by the Hong Kong Immigration Department. As the People's Republic of China stood to resume sovereignty over Hong Kong from the United Kingdom, the nationality of Hong Kong people as well as their right of abode in the territory was formalised prior to the 1997 handover. Since Hong Kong has never been an independent country, there is no provision for its own citizenship status. Hong Kong Permanent Resident is the legal status for those who have the right of abode in Hong Kong. Some rights in Hong Kong (such as the right to vote) are granted to all permanent residents, while others (such as the right to hold a HKSAR passport) are restricted to permanent residents who are also Chinese citizens.

Rights

The right of abode is enshrined in the Sino-British Joint Declaration and Hong Kong Basic Law, and is synonymous with the permanent resident status.

A Hong Kong permanent resident has the right

The term "right of abode" was first introduced into British law under the Immigration Act 1971 as it specifically applied to the United Kingdom, while British dependent territories were governed under a similar concept of belonger status. The Hong Kong Immigration Ordinance was amended effective 1 July 1987 to rename "Hong Kong belonger" status to "Hong Kong permanent resident" status, with "Hong Kong permanent residents" defined as having the right of abode in Hong Kong.

Colonial era

During British administration prior to 1997, right of abode in Hong Kong was shaped by British nationality laws, and immigration policies since the 1950s. With the Handover imminent in 1997, the Sino-British Joint Declaration and the Basic Law defined who may reside in Hong Kong once China assumes sovereignty over Hong Kong.

British nationality

The interior page of a Hong Kong BDTC passport that has been issued by the British consulate in New York City to indicate that the bearer has the right of abode in Hong Kong.

Since Hong Kong was created a British colony in 1842, those who were born in the territory or become naturalised had British nationality. This included the right to enter and live in United Kingdom in addition to Hong Kong.

By the 1960s, the United Kingdom passed the Commonwealth Immigrants Act 1962 and Commonwealth Immigrants Act 1968. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonisation of the 1960s, the British government tightened immigration control into the United Kingdom and Islands (the UK, the Channel Islands and the Isle of Man). As such, British nationals connected to Hong Kong were subjected to immigration control since 1962 and no longer had the right of abode in the United Kingdom.

Until 1997, British nationality related closely with the permanent resident status which guaranteed right of abode. Hong Kong permanent residents had British nationality either by birth, naturalisation or by descent. The type of British citizenship connected to Hong Kong eventually evolved to become different from that of the United Kingdom. What has not changed is the definition that a Hong Kong permanent resident has the right of abode in Hong Kong.

Immigration policies

There was no immigration restriction into Hong Kong until 1950. People were free to travel across the Hong Kong-Chinese border. With the establishment of the People's Republic of China in 1949, the Hong Kong government decided to close the border and implement immigration control in an attempt to stem waves of immigrants and refugees. The government also began to register Hong Kong residents to issue compulsory identity cards. The Hong Kong ID card is proof of legal residency still in use today.

Nevertheless, the immigration boom intensified throughout the 50s and 60s with the onset of the Cultural Revolution. The government adopted the Touch Base Policy in 1974 and began repatriating immigrants intercepted at the border. The government had abolished the policy by 1980 and began repatriating all illegal immigrants once discovered.

Even though the PRC maintains ethnic Chinese of Hong Kong are Chinese nationals, Hong Kong residents were subjected to immigration controls when entering the PRC and had no right of abode in the mainland. There was also a quota for PRC residents to apply for a One-way Permit under special circumstances to immigrate to Hong Kong.

Many Vietnamese people sought refuge in Hong Kong as a result of war and persecution in Vietnam that began in the mid-1970s. Backed by a Hong Kong Government humanitarian policy, and under the auspices of the United Nations, some Vietnamese were permitted to settle in Hong Kong. Between 1975 and 1999, 143,700 Vietnamese refugees were resettled in other countries and more than 67,000 Vietnamese migrants were repatriated. The illegal entry of Vietnamese refugees remained an issue for the Hong Kong government for 25 years. Finally in 2000, the government announced that it would widen the Local Resettlement Scheme for Vietnamese refugees and migrants, allowing the last remaining 1,400 refugees and migrants to settle in Hong Kong, granting them the right of abode.

Sino-British Joint Declaration

The Sino-British Joint Declaration signed on 19 December 1984 stated that the PRC would assume sovereignty over the entire ceded territory of Hong Kong on 1 July 1997.

The terms "right of abode" first appeared in Annex I of the Declaration as the government of the People's Republic of China elaborated its basic policies regarding Hong Kong. Section XIV—concerning right of abode, travel, and immigration—stated:

The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:

  • all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;
  • all other persons who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more and who have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region, and persons under 21 years of age who were born of such persons in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
  • any other persons who had the right of abode only in Hong Kong before the establishment of the Hong Kong Special Administrative Region.

Basic Law

Drafted in accordance with the Sino-British Joint Declaration, the Hong Kong Basic Law was adopted on 4 April 1990 by the Seventh National People's Congress of the People's Republic of China, and went into effect on 1 July 1997.

Certain classes of people hold Hong Kong Permanent Resident status, and hence the right of abode, by virtue of Article 24 of the Basic law. (Others may have the right of abode by statute[1][2]). The Article lists the following classes:

  1. Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
  2. Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;
  3. Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);
  4. Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;
  5. Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and
  6. Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

On the other hand, Article 22 states that for the purpose of entry into Hong Kong, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the authorities of the Central People's Government after consulting the Hong Kong government.

Under the Immigration Ordinance, a Chinese national applying for permanent residence and the right of abode under (2) above may qualify on the basis of any seven-year period in Hong Kong, while a non-Chinese national applying under (4) may only qualify on the basis of seven years immediately preceding the application. The latter requirement was challenged in Fateh Muhammad v. Commissioner of Registration as discriminatory and inconsistent with the Basic Law, but was upheld in the Court of Final Appeal in 2001.[3][4][5]

After the Handover

The Hong Kong Basic Law came into effect on 1 July 1997, along with the right of abode eligibility defined therein. Most Hong Kong residents became solely Chinese citizens on 1 July 1997 and continued to maintain their right of abode in Hong Kong held before the Handover. Non-Chinese citizens with Hong Kong right of abode maintained their original citizenship unless they successfully naturalised as Chinese citizens.

Controversies

The debate in 1999

The issue of who has the right of abode in Hong Kong prompted a fierce debate at the end of the 20th century and tested the "one country, two systems" policy towards Hong Kong of the People's Republic of China. On 29 January 1999, the Hong Kong Court of Final Appeal ruled in Ng Ka Ling and Chan Kam Nga that children of permanent residents had the right of abode, including children born in mainland China and children whose parents had not been permanent residents at the time of the child's birth. These decisions would have granted immediate right of abode to up to 300,000 people in mainland China, depending upon whether family unification would have been limited to children under a certain age, or extended to all people.

Many political commentators claimed that Hong Kong would experience a surge in people claiming the right of abode from mainland China, possibly disrupting the economy of Hong Kong,[6] which prompted the Hong Kong Government to ask the Standing Committee of the National People's Congress to reinterpret Articles 22(4) and 24(2)(3) of Hong Kong's Basic Law, which effectively overturned the court decision. This move sparked large protests and debate over whether or not the judiciary of Hong Kong remained independent from the government of mainland China. On 3 December 1999, the Court of Final Appeal ruled that the NPC's interpretation of the Basic Law was constitutional. The Court's decision denied almost all people listed as plaintiffs, including those already in Hong Kong since the first week of 1997, the right of abode.

According to Article 24 of the Basic Law, Chinese nationals may acquire the right of abode in Hong Kong inter alia by one of the following three ways:

  1. if they were born in Hong Kong before or after the transfer of sovereignty (Article 24(2)(1));
  2. if they have resided in Hong Kong for a continuous period of not less than seven years before or after the transfer of sovereignty (Article 24(2)(2)); or
  3. if they were born outside Hong Kong to persons covered by the above two categories (Article 24(2)(3)).

Many from Hong Kong had moved to mainland China and started families. Under the immigration law prior to 1 July 1997, their children born in mainland China had no right of abode in Hong Kong. After the Basic Law came into effect, the government of Hong Kong realised that Article 24(2)(3) would have allowed thousands of children in mainland China, who previously had no right of abode in Hong Kong, to immigrate to Hong Kong. Many children who had already illegally come to Hong Kong or overstayed their visas presented themselves to immigration authorities and claimed that they were entitled to stay in Hong Kong under Article 24(2)(3).

In response, the Legislative Council proposed to restrict the right of such persons by adding another requirement that one of the child's parents must have been a permanent resident at the time of the child's birth. On 10 July 1997, the Legislative Council passed the Immigration Amendment (No. 3) Ordinance, which introduced a certification system. Under this system, any person who claimed to have the right of abode in Hong Kong could prove their status only by showing a certificate of right of abode issued by the Director of Immigration of Hong Kong. This certificate could be applied for only in mainland China, and it would not be issued until the application obtained a one-way permit to cross the border to Hong Kong from the Chinese Public Security Bureau. The amendment was made retroactive to 1 July 1997, which meant that even children who had already arrived in Hong Kong with previously sufficient legal documentation would have been stripped of their right for lack of a certificate that did not yet exist when they entered Hong Kong. The retroactivity of the amendment triggered a number of test cases in court, which eventually came before the Court of Final Appeal as Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration.

In Ng Ka Ling v. Director of Immigration, the Court of Final Appeal was asked to rule on whether the No. 3 Ordinance was unconstitutional. The Director argued that the No. 3 Ordinance was constitutional because Article 24 was qualified by Article 22(4), which provides: "For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

In Chan Kam Nga v. Director of Immigration, the Court of Final Appeal was asked to rule on the following question: "can a child become a Hong Kong permanent resident under category (3) of Article 24 of the Basic Law by virtue of a parent's Hong Kong permanent resident status under category (2) of that article not only if such status of the parent's had been acquired before the child's birth but even if it had not been acquired until after the child's birth?"

On 29 January 1999, the Court of Final Appeal gave its judgment, which affirmed some fundamental constitutional principles. The Court held that the Basic Law was a living instrument which, like any other constitution, should be interpreted using a generous and purposive approach. The Court rejected the idea that Article 22(4) qualified the right of abode in Article 24(2)(3), since "people from other parts of China" mentioned in Article 22(4) do not include permanent residents of Hong Kong, and therefore Article 22(4) does not concern those who otherwise have a valid claim to be a permanent resident. A scheme to verify the claim of right of abode was in itself constitutional, but such a scheme should not have been used to deny valid claims.

The Court also held that in considering any particular provision, the courts should take into account the International Covenant of Civil and Political Rights (ICCPR) as it applied to Hong Kong. The Court found that Article 15(1) of the ICCPR rendered the retrospective provision unconstitutional. The Court also found that the ICCPR enshrined the principle of equality and recognised the importance of family, hence illegitimate children enjoy the right of abode as much as other children.

On the same day, the Court gave its judgment on Chan Kam Nga. The Court held that, as a matter of construction of Article 24, a child born after his or her parent became a permanent resident nevertheless enjoys the right of abode.

Based on the ruling, the Hong Kong Government estimated that the additional eligible persons in Mainland China who can obtain the right of abode (and therefore can immigrate to Hong Kong) within ten years would reach 1.6 million, and would result in very severe social and economic problems. While some questioned the methodology of the survey, opinion polls conducted revealed widespread concerns among the public on the consequences.

The debate on way forward

A number of persons in the legal sector believed that the best way forward was to seek the National People's Congress (NPC) of the People's Republic of China to amend the part of the Basic Law to redress the problem. They argued that judgment has correctly reflected the true legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law, and there are precedents in common law jurisdictions to repudiate a court judgment by means of legislative amendment. However, the Government pointed out (in May 1999) the disadvantages of such option, that since the NPC would meet only once a year in March, a large number of ROA claimants would have flooded Hong Kong by then, and also the Basic Law, as a constitutional document, should not be amended lightly before other options are fully explored.

Based on the above, the Hong Kong Government sought interpretation of, rather than amendment to, the Basic Law from the Standing Committee of the National People's Congress (NPCSC). The power of interpretation of the Basic Law by the NPCSC is explicitly provided under Article 158(1) of the Basic Law. However, no mechanisms are explicitly provided under that Article for the Government to take the initiative to seek an interpretation. (The Article provides only that the Court should seek an interpretation if it comes across Basic Law provisions concerning affairs under the responsibility of the Central Government or its relationship with the HKSAR before the final judgment. Article 22 in question is arguably one of such provisions).

Judicial independence undermined?

Former chief executive, Tung Chee Hwa, announced measures to be taken by the Government, which was to seek the assistance of the State Council to approach the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law provisions concerning the right of abode.[7] Commentators have widely commented that this is in contravention of Article 158 which stipulates the body that should seek an interpretation from the NPCSC is the Court of Final Appeal. Although the government, after the judgment of Lau Kong Yung & Others v Director of Immigration was handed down, claimed that "the Court had confirmed that the Government had acted entirely constitutionally and legally" in requesting a NPCSC interpretation,[8] the truth is the Court never endorsed or ratified the Government's acts. In the judgment, the Court affirmed that the NPCSC had unqualified power to interpret the Basic Law, but never discussed the issue as to whether the reference was legal. Therefore, this issue cannot be regarded as settled.[9]

On 26 June 1999, in line with the request of the HKSAR Government, the NPCSC issued its interpretation which makes it clear that children born outside Hong Kong will be eligible for the right of abode only if at least one of their parents has already acquired permanent residence status at the time of their birth. Also, those eligible for ROA need to comply with Article 22 of the Basic Law, i.e. they need to apply for the necessary approval from the relevant Mainland authorities before entry into Hong Kong.

Some have argued that the judicial independence of Hong Kong is undermined by the act of Government seeking an interpretation of the Basic Law after a judgment by the judiciary has been made. (Some critics dubbed this a re-interpretation of the Basic Law). In addition, the fact that NPC is the law-making body of People's Republic of China has prompted critics to argue that the principle of One country, two systems is endangered. The Government argued otherwise. In its paper Right of Abode, The Solution, the problems facing the HKSAR, the options, and the considerations leading to the decision were elaborated. The Secretary for Justice, Elsie Leung, further defended Government's decision in her speech to the Legislative Council after announcing the decision.[10]

Others have argued that regardless of the merits of the case, it was politically unwise for those worried about Hong Kong legal autonomy to use this as a test case to assert Hong Kong's judicial independence, since it is the general consensus that the Hong Kong public tended to support the position of the SAR government as well as the legal interpretation of the NPCSC.

Differences in opinion remain as to whether Hong Kong's judicial independence and the rule of law have been undermined. Criticism of the interpretation has originated largely from the legal sector.

The debate in 2011

Gladys Li, a Hong Kong Senior Counsel and a member of Civic Party, helped three Filipino families to apply for judicial review at High Court, to challenge the restriction stated in the Immigration Ordinances for foreign domestic helpers who have seven years' continuous ordinary residence in Hong Kong through working to apply for permanent residency. It has sparked a hot debate among the public in Hong Kong.

See also

References

  1. ↑ Transitional provisions in the Immigration Ordinance (Cap 115) give rights to certain other people who would not otherwise have it: Schedule 1(6) preserves the right of abode for many pre-handover permanent residents; and Section 2AAA gives those who lost permanent resident status on or after handover the right to land (including the right to live, work and study without restriction). This applies to many who have never lived in or even visited Hong Kong, for instance pre-handover British Dependent Territories Citizens by descent.
  2. ↑ A guide to the Right of Abode in Hong Kong, with scanned letters from the HK Immigration Department
  3. ↑ "Judgment Update: Fateh Muhammad v Commissioner of Registration & The Registration of Persons Tribunal" (PDF), Basic Law Bulletin (2): 21–23, 2001, retrieved 6 October 2011
  4. ↑ Law, Anthony M. W. (December 2004), "Racial Discrimination and the Right to Equality", Hong Kong Lawyer
  5. ↑ Fokstuen, Anne R. (2003), "The 'Right of Abode' Cases: Hong Kong's Constitutional Crisis", Hastings International Comparative Law Review, 26 (265), retrieved 4 October 2011
  6. ↑ Ghai, Yash (1999). Hong Kong'S New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law 3-6 (2d ed. 1999). p. 172. ISBN 962-209-463-5.
  7. ↑
  8. ↑ "Government statement on Court of Final Appeal judgement". info.gov.hk.
  9. ↑ Yash Ghai, The NPC Interpretation and Its Consequences, Hong Kong's Constitutional Debate-Conflict over Interpretation, Hong Kong University Press 2000
  10. ↑
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