Hong Kong Human Rights Monitor

Immigration Policy Threatens Constitutional Rights & Rule of Law

The Monitor strongly opposes the Government's  Immigration (Amendment) (No. 5) Ordinance passed on 9 July, which establishes an administrative barrier to block the exercise of constitutional rights. This amending Ordinance denies any recognition of the right of abode, protected under Article 24 of the Basic Law, to the children of Hong Kong residents even after they have proved their eligibility unless they also obtain a one-way permit (OWP) for entering Hong Kong. Such an abrogation of these children's rights is particularly serious because it sets a precedent, at the beginning of the HKSAR, of denying by administrative measures the constitutional rights of the Hong Kong people guaranteed in the Basic Law. By doing so, it makes a mockery of the rights set out in the Basic Law, and undermines the promise of the rule of law and guaranteed rights for the sake of administrative convenience and in order to pander to disgraceful prejudices against new immigrants.

The rights of these children to live in Hong Kong are clearly provided for in the Basic Law. Article 24(2)(3) specifically includes them as permanent residents with the right of abode. Article 31 provides residents with the freedom to exit and enter Hong Kong. Articles 37 and 39 reinforce the commitment of Hong Kong to protect families and unify them. By repatriating these children and forcing them and others still in China to enter through a restrictive quota system, the SAR Government violates the Basic Law and the rights of these children and their families.

The permit scheme which the Government has set up denies immediate entry to children who have the right to be here, and subject them to the corrupt OWP system administered by the Mainland authorities. The measures does not simply result in a brief wait, but in years of delay. Administrative necessity cannot justify these measures. All Hong Kong residents should be allowed to enter the region immediately.

The policy further violates the law and resident's rights by discriminating against a particular sub-category of people. Article 24 of the Basic Law lists six categories of people who are permanent residents and have the right of abode. For five of those six categories, the Government has not imposed requirements of joining the OWP queue to enter Hong Kong. Only a subgroup of one category of residents, provided for in Article 24(2)(3) is prevented from exercising their legally protected right. Such an approach thus discriminates against this class of people, flouting the principles of basic justice and equality which should underlie the government and thus violating Article 25 of the Basic Law's protection of equality before the law. It reinforces biases against immigrants rather than delivering a proper policy. These children deserve the same treatment as any other Hong Kong resident.

What makes the Government's policy most disturbing is that it has embarked upon a discriminatory path of disrespect for law and rights without any legitimate justification of necessity. It is clear that the processing time capability of the Hong Kong Immigration Department greatly exceeds the current daily quota of 66 children (45 specific and 21 non-specific) and that of 90 proposed by the Government. We recognize that an influx of children potentially could undermine efforts to reduce the student-teacher ratio and to lengthen the school day from a half day to a whole day. However, there are many alternatives to the restrictive policy preferred by the government which could prevent or minimize such an impact. The government does not need to deny some residents their right to live in Hong Kong simply to improve the education of others.

Hong Kong is a wealthy community with Government reserves of 330 billion dollars. It can afford to provide services for an additional 66,000 children and thus absorb them all at once. Even if all of these children were starting primary school (an unlikely scenario) and no classes were added, educating them without creating additional classes would increase the class size by approximately 5, from 34 to 39 children. It is unacceptable to withhold Hong Kong educational access based on the mere possibility of augmenting the education of others.

The Hong Kong Human Rights Monitor calls upon Chief Executive Tung Chee-hwa to demonstrate respect for the law of Hong Kong SAR, the rights of its people, and the traditional Chinese value of respect for family unity. As the world watches in these early days of their new administration, they have the opportunity to set the course for the new regime and to demonstrate its ability to uphold the rule of law. We urge them to comply with the Basic Law by removing the unconstitutional arrangements. Let the children in -- they belong here as much as the rest of us.


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