Hong Kong Human Rights Monitor

Immigration Law Review

Nearly a million people live and work in Hong Kong without having the right of permanent abode here. Hundreds of thousands more are directly concerned about the way in which people without the right of abode are treated because they are married to them, or otherwise related to them, or because they employ them or are employed by them. The system of immigration control in use in Hong Kong directly or indirectly affects the lives of most people in the territory.

The immigration control system contained in the Immigration Ordinance and in unpublished Departmental guidelines has grown up in a piecemeal manner in response to particular problems or issues. Parts of the system are similar to the United Kingdom system of immigration control, but important safeguards which exist in the United Kingdom to ensure that the system operates fairly and reasonably have not been reproduced in Hong Kong. The most important of these are published immigration rules and an appeal system, and the review recommends that both these safeguards should now be introduced.

The Monitor has this month published its Immigration Law Review, prepared by members who are legal experts. The review considers in detail the areas of Hong Kong's immigration law where the lack of reasons and or the lack of an appeal system are likely to result in particular unfairness. The first of these is deportation. British citizens have an appeal on the merits against a decision to deport them. Everyone else can only appeal on the basis that the deportation was outside the wide legal powers of the Government. The Monitor recommends that the right of appeal on the merits now available to British people only should be allowed to everyone. The present pro-British discrimination is an anachronism, and the effects of a deportation on a person's life are so serious that it is right that they should have the chance of an appeal.

A second area where the current system is unsatisfactory is treatment of refugees. At present refugees who are not from Vietnam, Laos or Cambodia have no rights at all under Hong Kong immigration law. Some are let in, but it is a matter of administrative grace and favour. Hong Kong is out of step with most of the world in this respect. The Monitor calls for the law relating to refugees to be put on a proper modern footing and for conditions relating to eligibility for refugee status to be published.

The review also calls for conditions relating to different categories of visitors to be published, and for a limited right of appeal for a visitor refused entry. It calls for the present unpublished policies to be turned into rules, so that where they are not followed without a lawful reason the applicant can see that the rules have been breached. The review also for introduction of a right of appeal against the making of removal orders.

At present some appeals can be made to the Governor or to the Governor-in-Council. This means that in effect the same officials are considering the appeal who made the original decision. The review calls for an independent adjudicator on appeals to be set up so that the system is seen to be fair.

With a new Director of Immigration in post, and with extensive changes to the Immigration Ordinance now in prospect because of the transfer of sovereignty, the Monitor believes that this is the right time for a through overhaul and rationalisation of immigration law with the aim of improving the safeguards to ensure that all applicants receive fair treatment.

1996/1997 (c) Hong Kong Human Rights Monitor