"Deployment of mainland troops in Hong Kong" (Item A1 of the list of outstanding items)
"Policy on the handling of petitioners" proposed by Mr CHEUNG Man-kwong and Miss Margaret NG
"The Law Reform Commission Report on Arrest" proposed by the Administration.

Special meeting on 2 December 1996

3. Members also agreed to hold a special meeting on 2 December 1996 at 8:30 am to discuss the following items :

"Entry visa for Taiwan visitors" (Item A2 of the list of outstanding items);
"Problem of wife battering" proposed by Mrs Selina CHOW (Item A3 of the list of outstanding items); and
"Disciplined Services Welfare Funds" proposed by the Administration.

New item for discussion at future meetings

4. Mr Zachary WONG pointed out that in a number of recent land disputes between private developers and residents in the New Territories, the former had time and again forced the latter to move away by means of harassment and intimidation. In view of the seriousness of the problem, he proposed to discuss the subject at a future Panel meeting.

III. Report of the Subcommittee on the Police Management Review

(LegCo Paper No. CB(2) 120/96-97)

5. Members endorsed the report of the Subcommittee on the Police Management Review (the Subcommittee) on its work during the period from May 1995 to July 1996.

6. Members also noted that a total of six members had joined the Subcommittee for the 1996-97 session. The Subcommittee would schedule meetings to examine the remaining nine reports.

IV. Permanent Residency after 1997

(LegCo Paper No. CB(2) 207/96-97(02))

(LegCo Paper No. CB(2) 261/96-97)

(LegCo Paper No. CB(2) 269/96-97)

Short titles

7. The following short titles were used in this part of the minutes :

"Former Hong Kong - Former Hong Kong permanent residents permanent who had emigrated and acquired a foreign residents" nationality

"Document 1 of the - Resolution passed by the National Peoples Chinese side" Congress Standing Committee on 15 May 1996 on the application of the Chinese Nationality Law in the Hong Kong Special Administrative Region

"Document 2 of the - "Views on the application of paragraph 2 of Chinese side" Article 24 of the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China" adopted by the HKSAR Preparatory Committee on 10 August 1996

Document tabled by the Administration

8. The Administration tabled "Document 2 of the Chinese side" at the meeting.

(Post-meeting note: The document was circulated to absent members after the meeting under LegCo Paper No. CB(2) 261/96-97.)

Briefing by the Administration

9. Deputy Secretary for Security(2) advised that since the Secretary for Securitys briefing of the Panel on 7 October 1996, there had been no significant new developments on the subject within such a short period of time. The Administration, through the expert talks under the Sino-British Joint Liaison Group, continued discussion with the Chinese side and therefore, was not in a position to disclose further details at this stage. However, the Administration was fully aware of the concerns expressed by the local community and former Hong Kong permanent residents. It aimed at reaching a consensus with the Chinese side on the subject as soon as possible.

10. To dispel some misunderstandings on the subject, Deputy Secretary for Security(2) advised that the definition of "have returned and settled in Hong Kong before 1 July 1997" was still under discussion with the Chinese side and yet to be finalized. He clarified two common questions about the definition :

Whether it was necessary for former Hong Kong permanent residents to return to Hong Kong before 1 July 1997?
The Administrations understanding was that it might not be necessary for them to do so. Even if they did, they might not be regarded as "have returned and settled in Hong Kong before 1 July 1997".
If former Hong Kong permanent residents were not regarded as "have returned and settled in Hong Kong before 1 July 1997", would they lose their right of abode in Hong Kong after 1997?
The Administrations understanding was that if they had lost their right of abode in Hong Kong, it would not be necessary for them, like foreign nationals, to apply for an entry visa every time they returned to Hong Kong, as they would be given an alternative status to enable them to live and work in Hong Kong without the need to apply for visas. Moreover, they would not lose their right of abode in Hong Kong permanently. Under paragraph 2(4) of Article 24 of the Basic Law, they would be regarded as the permanent residents of the Hong Kong Special Administrative Region (HKSAR) and could reacquire the right of abode in Hong Kong if they had ordinarily resided in Hong Kong for a continuous period of not less than seven years and had taken Hong Kong as their place of permanent residence before or after the establishment of the HKSAR.

Discussions

Questions raised by Miss Margaret NG

11. Referring to paragraph 30 of the speech made by the Secretary for Security on 4 October 1996 in a public occasion (Annex to LegCo Paper No. CB(2) 207/96-97(02)), Miss Margaret NG requested the Administrations clarification on the following questions :

Paragraph 30 of the speech
This paragraph was mainly about what appeared to be the Chinese sides thinking on how the relevant provisions of the Basic Law on the right of abode for "non-Chinese nationals" would be applied. In this connection, what would be the status of those Hong Kong residents who had obtained their British passports under the British Nationality Selection Scheme? Would the Chinese side treat them the same as other British passport holders?
Paragraph 30(a) and (b) of the speech
The expressions "have returned and settled in Hong Kong before 1 July 1997" and "have not returned to settle in Hong Kong before 1 July 1997" were respectively used in paragraph 30(a) and (b) of the speech. There appeared to be a difference between "returned and settled" and "returned to settle". Was there really a difference? In order to fulfil the requirements for "returned and settled in Hong Kong before 1 July 1997", how long before 1 July 1997 did one have to return and how long did one have to stay after 1997?
Paragraph 30(b)(ii) of the speech
In this subparagraph, it was stated that "...... you will be given an appropriate immigration status, which enables you to live and work freely in Hong Kong ......". What status was this going to be? Would there be any legislative provisions to protect the rights "to live and work freely in Hong Kong" ?
Paragraph 30(c) of the speech
In this subparagraph, it was stated that those who did not have a right of abode in Hong Kong would have to prove that he had ordinarily resided in Hong Kong for a continuous period of 7 years immediately before he applied for a right of abode in Hong Kong and to declare that he had taken Hong Kong as his place of permanent residence. How about if a person who had ordinarily resided in Hong Kong for a continuous period of 6¹/₂ years immediately before 1 July 1997? Would he be required to start all over again and reside in Hong Kong for another 7 years before he could apply for a right of abode?

12. Deputy Secretary for Security(2) and Assistant Director (Special Duties) of the Immigration Department (ID) responded as follows :

Paragraph 30 of the speech
It was stated in "Document 1 of the Chinese side" that the British national status of Hong Kong residents who had obtained their British passports under the British Nationality Selection Scheme would not be recognized under the Chinese Nationality Law and that they would still be regarded as Chinese nationals. Discussion with the Chinese side was still going on regarding the status of this group of Hong Kong residents and no conclusion had been reached.
Paragraph 30(a) of the speech
Discussion with the Chinese side was still going on and the details relating to paragraph 30(a) of the speech were yet to be clarified.
Paragraph 30(c) of the speech
Paragraph 3 of "Document 2 of the Chinese side" provided the calculation method for "have ordinarily resided in Hong Kong for a continuous period of not less than seven years" under paragraph 2(2) and 2(4) of Article 24 of the Basic Law. In respect of the example quoted at paragraph 11(d) above, the Administrations understanding was that the 6¹/₂-year residence period immediately before 1 July 1997 would be counted if the person concerned continued to stay in Hong Kong after that date.

13. In view of the limited time available, the Chairman suggested Miss Margaret NG to put her questions to the Administration in writing.

(Post-meeting note: Miss Margaret NGs letter dated 28 October 1996 to the Secretary for Security was circulated to members under LegCo Paper No. CB(2) 269/96-97.)

Right of abode for "non-Chinese nationals"

14. Referring to paragraph 30 of the Secretary for Securitys speech and paragraph 7 of "Document 2 of the Chinese side", members pointed out that the right of abode for "non-Chinese nationals" was a subject of particular concern of former Hong Kong permanent residents. They considered that the Administration should offer further interpretation of "Document 2 of the Chinese side" to clarify the ambiguities such as the following :

Paragraph 7(2) of the document
Recently, a number of former Hong Kong permanent residents returned to Hong Kong and successfully renewed their identity cards. If they were not returning for settlement as required under paragraph 7(2) of the document, would their identity cards be valid beyond 1 July 1997?
Paragraph 7(3) of the document
What was the "stipulated time limit" ?

15. Deputy Secretary for Security(2) advised that as discussion with the Chinese side was still going on, the Administration was not in a position to comment on specific questions in detail. In general, as stated in paragraph 30(a) of the Secretary for Securitys speech, those former Hong Kong permanent residents who had returned and settled in Hong Kong before 1 July 1997 could both keep their right of abode and their foreign nationality. However, if they returned to Hong Kong after 1 July 1997 and chose to declare themselves as a foreign national, they would lose their right of abode and had to live in the HKSAR for another 7 years before they could reacquire their right of abode in Hong Kong.

16. The Chairman pointed out that paragraph 30 of the Secretary for Securitys speech seemed to imply that former Hong Kong permanent residents could choose whether to declare their foreign nationality upon their return to Hong Kong. In fact, they did not have such a choice because under the existing legislation, they were required to declare their foreign nationality in the application form for renewing their identity cards. The ID would then have such records. The Chairman requested the Administration to clarify this point in writing and to provide the relevant application form for members reference.

Adm

Right of abode for the children of "non-Chinese nationals"

17. Mr LO Suk-ching said that according to recent press reports in the United Kingdom (UK), the children of former Hong Kong permanent residents, who were born in the UK, were required to return to Hong Kong before 1 July 1997 for applying identity cards. Otherwise, they would have no right of abode in Hong Kong after 1 July 1997. He sought clarification on this point.

18. Deputy Secretary for Security(2) reiterated that the details about the right of abode for "non-Chinese nationals" were yet to be finalized, nor their children. In general, the Administrations understanding was that :

if a former Hong Kong permanent resident had returned and settled in Hong Kong before 1 July 1997 and chose to be treated as a Chinese national, his/her children born outside Hong Kong would be considered as permanent residents of the HKSAR under paragraph 2(3) of Article 24 of the Basic Law;
if a former Hong Kong permanent resident returned to Hong Kong after 1 July 1997 and chose to be treated as a foreign national, his/her children under 21 years of age born in Hong Kong would be considered as permanent residents of the HKSAR under paragraph 2(5) of Article 24 of the Basic Law.

19. Regarding paragraph 18(b) above, the Chairman asked what would be the status of those children born outside Hong Kong. Deputy Secretary for Security(2) advised that the details of the subject were yet to be finalized. The Chairman asked if the Administration could provide in writing its interpretation of the Chinese sides thinking on how the right of abode for the children of "non-Chinese nationals" would be handled under paragraph 2(3) and 2(5) of Article 24 of the Basic Law. Deputy Secretary for Security(2) advised that at this stage, the Administration could only say that in respect of nationality, if parents were eligible for acquiring Chinese nationality in accordance with "Document 1 of the Chinese side", their children born in Hong Kong and China would also be eligible for the same.

20. Mr LO Suk-ching asked whether children over the age of 21 were not eligible for acquiring their parents nationality. Deputy Secretary for Security(2) agreed to provide a response later.

(Post-meeting note: After the meeting, Deputy Secretary for Security(2) advised that children over the age of 21 were not eligible for acquiring their parents nationality for cases under paragraph 2(5), but not for cases under paragraph 2(3), of Article 24 of the Basic Law.)

Consular protection

21. Mr Howard YOUNG noted that paragraph 30(b)(ii) of the Secretary for Securitys speech stated that a former Hong Kong permanent resident, upon his/her return to Hong Kong, could declare himself/herself to be a foreign national and thus enjoy consular protection while in Hong Kong or China. He requested the Administrations clarification on "consular protection" and, the conditions and normal international practices which restricted its application. For example, Mr YOUNG pointed out that during the UK Prime Ministers visit to Hong Kong in March 1996, he had advised the LegCo Members that those Polish who were born in Poland and then acquired British nationality would not enjoy consular protection during their stay in Poland. Mr YOUNG asked whether those former Hong Kong permanent residents who had acquired British nationality would also not enjoy consular protection during their stay in Hong Kong.

22. Deputy Secretary for Security(2) advised that the ID had published a pamphlet on consular protection. He undertook to provide members with the relevant pamphlet and an information paper on the subject. The Chairman requested the Administration to include in the paper the information sought under paragraph 21 above.

Adm

Right of abode/right to land/unconditional stay

23. In response to Mr Albert HOs enquiry, Deputy Secretary for Security(2) advised that the Immigration Ordinance provided a hierarchy of rights as follows :

First level : right of abode

Second level : right to land

Third level : unconditional stay

Fourth level : conditional stay

24. Deputy Secretary for Security(2) pointed out that the differences between right of abode, right to land and unconditional stay were included in paragraph 27 of the Secretary for Securitys speech. Some people might be worried that those "returning emigrants" might lose their right of abode in Hong Kong after 1997 and be downgraded to the fourth level stated above. The Administrations understanding was that this situation should not arise. As they were former Hong Kong permanent residents who once had the right of abode in Hong Kong, the thrust of the talks was to make it more convenient for them to return, live and work in Hong Kong.

25. The Chairman requested the Administration to provide a paper to explain the hierarchy of rights, i.e. to explain the rights involved in each level, whether they were legal or administrative rights and the relevant legal basis.

Adm

Legislative amendments

26. In response to Miss Emily LAUs enquiry, Deputy Secretary for Security(2) confirmed that the Administration would, after reaching a consensus with the Chinese side on the subject, deal with the relevant legislative amendments. The Administration was fully aware of the need to amend the legislation before 1 July 1997 and was working towards that goal.

27. Mr CHEUNG Hon-chung asked whether the definition of "have returned and settled in Hong Kong" would be included in the legislation. The Chairman requested the Administration to provide a written response on this point.

Adm

The Way Forward

28. In view of the importance of the subject, members agreed to keep it a standing item for discussion at the Panel once every two months.