Deputy Secretary for Security (DS for S) said that in previous discussions of the Bills Committee, members were concerned about the lack of details on the right of abode (ROA) arrangements for non-Chinese nationals. Subsequent to recent developments on the issue, the Administration had briefed members of the Panel on Security in April and the Governor had also spoken on the subject at the Governors Question Time on 24 April 1997. On the substance of the ROA package, announcement had been made on all details relating to 95% of the issues to which agreement had been reached between the Chinese and British sides. Although the legislation on ROA was still not in place, British citizens with right to land would be able to acquire ROA from 1 July 1997 when the Basic Law came into effect. The question at issue was whether it would be better for the Bill to be dealt with by this LegCo, rather than leaving it to the HKSAR Government. He added that with the announcements on the details of the ROA package, the present situation was much clearer than that in March when the Bills Committee deliberated on the issue.

DS for S said that it would be desirable for the Bill to be passed by this LegCo to put in place the following transitional arrangements which were part of the Administrations proposal -

British citizens who had the right to land and were in Hong Kong when the Bill came into effect would be given the unconditional stay status. They could acquire ROA with effect from 1 July 1997. This meant that the period during which they would be on unconditional stay could be very short; and
Those who had the right to land but were not in Hong Kong when the Bill came into effect would be given unconditional stay any time they returned to Hong Kong within 12 months of the commencement of the Bill.

DS for S said that as most of the key substantive issues relating to ROA had been resolved, it was necessary to provide a clear and unambiguous picture to British citizens on their status in Hong Kong after 1 July 1997. It was the intention of the Administration to proceed with the resumption of the Second Reading debate on the Bill at the last LegCo sitting on 23 June 1997.

Consultation with the Chinese side and HKSAR Government

In response to members, DS for S said that the Chinese side had been informed of details of the legislative proposals including transitional arrangements to remove the right to land of British citizens. However, if the Bill was not passed intact by this LegCo, he could not rule out the possibility that the HKSAR Government might reconsider some of the proposals after 1 July 1997. He advised members that the Chinese side had not been consulted on the proposal to allow British citizens who had acquired the right to land to retain it. Given the limited time available, it would be unrealistic to raise the issue with the Chinese side at this stage.

In response to the Chairman, DS for S said that the Administration had not consulted the Chief Executives Office on the Bill on a formal basis. However, information gathered on an informal basis revealed that it was the preference of the Chief Executives Office that the Bill should be dealt with in the current LegCo session. Miss Margaret NG opined that the views of the Chief Executives Office should be sought. The Chairman held the view that any clarification made might not be conducive to resolving the matter.

Mr IP Kwok-him opined that allowing British citizens who had acquired the right to land to keep it would mean a perpetuation of British privileges beyond 1 July 1997. He could see no reason for the Chinese side to endorse the proposal.

Mr Howard YOUNG asked whether the proposal to allow British citizens to retain the right to land status after 1 July 1997 would be in breach of the Basic Law. DS for S said that Article 24 of the Basic Law (BL 24) made no reference to the right to land provision in the Immigration Ordinance. According to legal opinion, retaining the right to land provision in the Immigration Ordinance for those British citizens who had acquired it did not appear to be inconsistent with the Basic Law. However, in proposing the removal of right to land of British citizens, the Administration had taken into account the views of and possible measures to be taken by the HKSAR Government on the matter.

Implementation of BL 24(2)(4)

Assistant Director of Immigration (AD of I ) explained that under BL 24(2)(4), persons not of Chinese nationality who had entered Hong Kong with valid travel documents, had ordinarily resided in Hong Kong for a continuous period of not less than seven years immediately before the date on which such persons apply for ROA, and had taken Hong Kong as their place of permanent residence before and after the establishment of the HKSAR would qualify for ROA. A form had been designed to allow persons in this category to make a declaration to demonstrate that they had taken Hong Kong as their place of permanent residence. The criteria used in determining whether a person had taken Hong Kong as his place of permanent residence included the following: whether he had a habitual residence in Hong Kong; whether his principal family members were in Hong Kong; whether he was able to support himself without assistance from public funds; whether he had any outstanding tax liabilities or such other grounds as might be relevant to the declaration. Persons making the declaration would have to provide the required information to the Immigration Department for assessment.

On members concern that those who had acquired ROA under BL 24(2)(4) but had subsequently been continuously absent from Hong Kong for more than three years would lose their ROA, AD of I explained that those who were temporarily overseas for study or work would not be regarded as absent from Hong Kong for the purpose of counting the prescribed period of absence.

In response to Mr Howard YOUNG, DS for S said that the Immigration Department had stepped up publicity efforts to promote the publics understanding of the implementation arrangements of ROA. These included distributing booklets to the public, operating hotlines to answer enquiries and undertaking promotional activities overseas. As many foreign nationals would have an interest to acquire ROA, consideration would be given to issuing the declaration forms before 1 July 1997.

In response to further questions from members, DS for S said that on 1 July 1997, British citizens with right to land could choose between being a permanent citizen of Hong Kong with ROA or keeping their unconditional stay status. The change of status of British citizens from right to land to unconditional stay, and then to ROA, would be almost seamless, except for the time taken to process declarations made and information submitted for the purpose of acquiring of ROA under BL 24. However, if the Bill was not passed in the current session, British citizens could acquire the right to land or to apply for ROA after 1 July 1997, thus placing them in a more privileged position vis-a-vis other foreign nationals. This would be contrary to the policy intention to bring the immigration status of British citizens on par with other foreign nationals. It was also questionable as to whether this would be acceptable to the HKSAR Government.

Right of Abode legislation

DS for S said that although it would be ideal to have domestic legislation on ROA enacted by 1 July 1997, it was not an overriding necessity. He said that BL 24 provided the basic legal framework within which the Director of Immigration could make her decisions on ROA matters from 1 July 1997. When making her decisions, she could refer to any agreement or consensus which had been reached on right of abode by the two sides. For a non-Chinese national who would like to acquire ROA, he had to demonstrate that he had taken Hong Kong as a permanent residence. The Director of Immigration would need time to process the declaration made and information submitted, and also to check whether he met the seven-year residence requirement. As the verification process took time, the Immigration Department should be able to operate without domestic legislation for a short period after 1 July 1997.

Adm

Miss Margaret NG said that in the absence of domestic legislation on ROA, uncertainty still remained as to whether British citizens who would lose right to land would be able to acquire ROA. She queried whether BL 24 alone would have legal effect without its provisions being incorporated in the Immigration Ordinance. She pointed out that in the absence of domestic legislation, there were practical difficulties to implement BL 24 which did not correspond with the provisions of the existing Hong Kong law. She would like to know the legal basis for the Administrations advice that the Director of Immigration could make decisions on ROA matters on the basis of Basic Law and before enactment of the legislation on ROA. DS for S agreed to seek legal advice on the point raised and revert to the Bills Committee.

Proposed amendments to the Bill

Miss Margaret NG opined that the Bill and BL 24 shared a common objective i.e. the immigration status of foreign nationals should be equal before the law. Since the substantive issues relating to ROA had been agreed between the British and Chinese sides, and in the absence of legislation on ROA enacted on 1 July 1997, she would consider proposing amendments to incorporate the BL 24 provisions in the Bill. She sought the Legal Advisers opinion as to whether the proposed amendments would be in order.

The Legal Adviser said that the Bill sought to repeal the right to land of British citizens. Miss NGs proposed amendments presented an alternative proposal to deal with the matter. While he would need time to give a considered opinion, his initial response was that the proposal was within the scope of the Bill. However, whether the proposed amendments were in order was a matter for the President to rule. The President, in making his ruling, would take into account past practices, Standing Order No. 45(4)(a) which stipulated that "an amendment must be relevant to the subject matter of the Bill and to the subject matter of the clause to which it relates" and possible charging effect of the proposed amendments. He pointed out that the scope of the proposed amendments appeared to be wider than that of the Bill because BL 24 was applicable to all foreign nationals including British citizens.

On Miss NGs proposed amendments, the Chairman pointed out that a British citizen with right to land was not necessarily ordinarily resident in Hong Kong, hence he might not be eligible for ROA. There were technical difficulties to incorporate BL 24 provisions in the Bill. Miss NG explained that BL 24 was a descriptive provision without details on how ROA arrangements should be implemented. The proposed amendments could set out in detail the eligibility criteria for ROA so that only those who met the criteria would qualify for ROA. However, she had yet to decide whether to move such amendments.

In response to Mrs Selina CHOW, DS for S said that the Administration would move a CSA to amend the commencement date of the Bill to a day on which the Bill was published in the Gazette. He reassured Mr Howard YOUNG that once the Bill was passed by the Council, the Governors assent would be obtained immediately to ensure that the Bill could come into effect before the change of sovereignty.

Impact on British citizens

Mr IP Kwok-him asked whether British citizens previously with right to land could enter Hong Kong freely after the enactment of the Bill. DS for S replied that a British citizen who had the right to land was not in Hong Kong when the Bill came into operation would be granted unconditional stay if he returned to Hong Kong within 12 months of the commencement of the Bill. In addition, under the existing policy for unconditional stay, a person with the status was allowed to resume this status if he returned to Hong Kong within 12 months after departure. However, other foreign nationals would lose their unconditional stay status if they had left the territory for more than 12 months. In response to members comments that British citizens with right to land were given more favourable treatment under the arrangements, he said that what the Administration had proposed was a transitional arrangement which took a progressive approach to abolish the privileged immigration status of British citizens, taking into consideration that they should be given more time to prepare for changes. At this juncture, the Chairman asked the Administration to consider extending the period of 12 months to 18 months, the latter being the period allowed for returning emigrants who chose to be treated as foreign nationals to return to settle in Hong Kong in order to retain their ROA. DS for S said that the two specified periods were different in nature, in that one was related to right to land, and the other to ROA.

Position of the Bills Committee

Miss Margaret NG said that an acquired statutory right should not be removed in the absence of a suitable replacement status. She maintained the view that British citizens with right to land should be allowed to retain it. She said that while it was acceptable for the HKSAR Government to pass the Bill when legislation on ROA was in place on or after 1 July 1997, it was inappropriate for the current LegCo to do so as a matter of principle. While she would not support the Bill, she had no objection to the resumption of the Second Reading debate on the Bill in the current session.

Miss CHAN Yuen-han, Mr Paul CHENG and Mr IP Kwok-him said that they supported the Bill.

Mrs Selina CHOW said that the Liberal Party had yet to decide on its stance. The Chairman said that the Democratic Party would also reserve its position.

The Chairman concluded that the majority of the members of the Bills Committee present at the meeting agreed to support the Bill. Members agreed that the Second Reading debate on the Bill be resumed at the last sitting and that a report should be made to the House Committee on 13 June 1997.

The meeting ended at 10:10 am.

Provisional Legislative Council Secretariat
10 July 1997

Last Updated on 16 October 1997

Bills Committee on Immigration (Amendment) Bill 1997

Minutes of 6th meeting held on Tuesday, 3 June 1997 at 8:30 am in the Conference Room A of the Legislative Council Building

I. Confirmation of minutes of meetings on 7 and 13 March 1997

II. Meeting with the Administration

Position of the Administration