Hotline Asia Urgent Appeals -- UA020124(2)

Action Requested || Sample Letter || Background
Please respond on or before 28 February 2002
(Without any concession, forced repatriation will be taken on 31 March)
Update

Summary

The Court of Final Appeal (CFA), the highest court of the Hong Kong Special Administrative Region (HKSAR) handed down its latest verdict on right of abode cases on 10 January 2002. Among the 5,114 abode seekers, only about 500 claimants will benefit from this latest judgment while the other 4,600 face removal, resulting in families being split. This is also expected to affect cases of another 7,500 abode seekers involved in this two-year legal battle.

The right of abode of these abode seekers, many of them children, whether or not their parents had HKSAR citizenship at the time of their birth, was granted by the Basic Law which came into effect on 1 July 1997 and was again confirmed by the CFA in its 29 January 1999 ruling. Their right to family reunion, however, was deprived by the HKSAR government's request for a reinterpretation of the related Basic Law Articles by the National People's Congress Standing Committee (NPCSC) of the People's Republic of China (PRC) on 26 June 1999. It is of grave concern that in its latest judgment, the CFA found that all the claimants had a legitimate expectation that the government would uphold their promise but, except for one judge, and because of the lingering effect of the reinterpretation, it would not provide the logical remedy.

Please write polite letters to express your concern on this case and ask the authorities to expand the concession policy to allow all the PRC-born children of HKSAR residents who were already in Hong Kong before 10 January 2002 with a court case filed to receive the right of abode.

Sample Letter

Background

The problem of separation of families between the PRC and Hong Kong has existed for a few decades. Under the current One-Way Permit scheme, there is quota of 150 PRC citizens per day who are allowed to permanently reside in Hong Kong. This quota is shared among people who settle to invest, who have skills required by the HKSAR or who want to be united with their families, etc. For family reunion of PRC-born children, only those under 16 and born after either of their parents obtained permanent residency in the HKSAR, or those whose parents were over 65 without other children in the HKSAR, can apply. Once the Permit is issued by the PRC, it will be sent to the HKSAR for a Certificate of Entitlement (COE). After being approved, the Permit attached with a COE will be given to the applicant.

In 1984, the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong declared that "persons of Chinese nationality born outside Hong Kong of such 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 period of 7 years or more)" "shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance of 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" (Annex I, chapter XIV). In 1990, the NPCSC approved the "Basic Law" of the HKSAR, which includes the afore-mentioned declaration into Article 24. The Basic Law is the "mini" constitution of the HKSAR and a cornerstone of the "One Country, Two Systems" principle upon which the HKSAR exists as a special administrative region of the PRC.

Many families separated by previous immigration policies received hope of reunion when the Basic Law came into effect on 1 July 1997 (the handover of Hong Kong to the PRC). Many PRC-born children of HKSAR parents rushed to the HKSAR Immigration Department on the first business day after the handover, demanding that their right of abode in Hong Kong as stated in the Basic Law be realised. Within a week, 400 illegal immigrants, who were hoping for the law to grant them the right to be reunited with the families in the HKSAR, surrendered themselves to the Immigration Department.

Instead, on 9 July 1997 the Provisional Legislature (appointed by the PRC to provisionally legislate after the handover and before the election of a legislature by an electoral system acceptable to the PRC) of the new HKSAR passed the 1997 Immigration (Amendment No.3) Ordinance. This amendment requires that children born in the PRC obtain a COE before they can come to Hong Kong. The law was backdated to take effect on 1 July 1997. As a result, families of a number of PRC-born children seeking right of abode legally challenged the validity of the amended Ordinance which would lead to their children's repatriation to the PRC.

After the lower courts ruled against these families legal challenge, they appealed to the CFA, the highest court in the HKSAR. On 29 January 1999 the CFA (Judgment 129) ruled that these PRC-born children had the right of abode in the HKSAR. The CFA ruled that:

· Chinese nationals born outside of Hong Kong before or after either of their parents obtained permanent residency in Hong Kong could have the right of abode in the HKSAR;
· The right of abode and hence the right to family reunion should be recognised as a core "right" which cannot be subjected to the quota system;
· Abode seekers were not required to have a One-Way Permit to obtain a COE to enter Hong Kong.

There is a great anxiety among HKSAR residents that their prosperity will be eroded by uncontrolled and large-scale immigration of people from the PRC. According to local human rights groups, the HKSAR government quickly manipulated these fears after Judgment 129 was made; for example producing statistics suggesting that over 1.67 million - a figure disputed by local human rights groups - additional PRC-born children would be entitled to the right of abode in the HKSAR as a result of Judgment 129. Using the justification of the fears of a majority of HKSAR residents, on 18 May, the then Executive Council decided that the Chief Executive would request the NPCSC to give a reinterpretation of Basic Law Article 24(2) and (3), and Article 22(4) (those relevant to the question of the right of abode). This resulted in the overturning of Judgment 129 on 26 June 1999 with the following decision:

· PRC right-of-abode claimants must obtain a One-Way Permit before being allowed to settle in the HKSAR;
· Only those PRC children born after either of their parents obtained permanent residency in Hong Kong could have the right of abode in the HKSAR.

In fact, soon after Judgment 129, there was a belief that the ruling of the highest court in the HKSAR in favour of the abode seekers would be the final word on the case and the reinterpretation of the Basic Law was not expected. Many PRC-born children came to Hong Kong because of Judgment 129 and before the NPCSC reinterpretation. According to legal experts and the CFA itself, they thus have a legitimate expectation to be entitled to right of abode.

Since, the NPCSC reinterpretation, further legal challenges were mounted which led to this latest CFA ruling on 10 January 2002. It is estimated that the latest ruling gives the right of abode to only about 500 abode seekers. However, most of the 5,114 abode seekers, many who are children, face removal and their families being split. Many of these abode seekers will have no chance to apply for One Way Permits because they were born before either of their parents obtained permanent residency in Hong Kong. Many others had been applying for a One-Way Permit for more than 10-20 years. Due to the quota and the many applicants (some allegedly using their "connections" or bribery to apply), there are cases of persons who failed to get the permit while they were under 16 but because they are now over 16, will not be eligible to apply again. Without an effective and reasonable mechanism for settling the problem of family separations, they had given up their careers or studies in the PRC to illegally reside in Hong Kong after Judgment 129 with the hope of family reunion. Many children will have no choice but to return to the PRC alone.

The action of the HKSAR government to deny the right to family reunion violates the spirit of the Universal Declaration of Human Rights. The HKSAR government also seriously damaged the rule of law in the HKSAR when it usurped the authority of its highest court and sought a reinterpretation of the Basic Law; in June 1999, the same month after the NPCSC reinterpreted the Basic Law to overturn the Judgment 129, more than 600 members of the legal sector including barristers, solicitors and law students staged a silent protest against the government's actions.

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Thank you for Your Continued Support!!