Provisional Legislative Council

PLC Paper No. 532/96-97
(These minutes have been
seen by the Administration)

Ref : PLC/BC/06


Bills Committee on
Immigration (Amendment) (No.3) Bill 1997

Minutes of Meeting held on Sunday, 8 June 1997 at 9:30 a.m. in the Main Hall, Huaxia Art Centre, Shenzhen

Members Present :

Hon Paul CHENG Ming-fun (Chairman)
Hon Howard YOUNG (Deputy Chairman)
Hon WONG Siu-yee
Dr Hon Raymond HO Chung-tai
Hon Eric LI Ka-cheung
Hon LEE Kai-ming
Hon Mrs Elsie TU
Hon Mrs Peggy LAM
Hon Henry WU
Hon MA Fung-kwok
Hon Mrs Sophie LEUNG LAU Yau-fun
Hon TSANG Yok-sing
Hon Kennedy WONG Ying-ho
Hon YEUNG Chun-kam
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon LAU Kong-wah
Hon KAN Fook-yee
Hon Maria TAM

Members Absent :

Hon CHEUNG Hon-chung
Hon CHAN Choi-hi
Dr Hon Philip WONG Yu-hong

Attendance By invitation :

From the Chief Executive's Office

Mrs Fanny LAW
Director

Mr Benedict LAI
Principal Government Counsel

Mr Francis CHEUNG
Senior Law Drafting Officer

Mr Anthony Watson-Brown
Law Drafting Officer


Clerk in Attendance :

Andy LAU
Committee Clerk 3


Staff in attendance :

Mr Arthur CHEUNG
Legal Adviser

Mrs Betty LEUNG
Committee Clerk 1

Mr YUEN Leung-fai
Assistant Committee Clerk 6




I. Meeting with members of the Chief Executive ' s Office

The Chairman welcomed representatives from the Chief Executive ' s Office (CE ' s Office) to the meeting.

2. At the invitation of the Chairman, the Director/Chief Executive ' s Office (D/CEO) briefed members on the proposed amendments in the Immigration (Amendment) (No. 3) Bill 1997 (the Bill). She said that the 6 categories of permanent residents provided in paragraph 2 of Schedule 1 to the Bill were defined in accordance with the principles laid down in the Basic Law. The purpose of local legislation was to translate these principles into practice, taking account of the actual situation. The Nationality Law of the People ' s Republic of China was a national law which appeared in Annex III to the Basic Law and would be applied to the Hong Kong Special Administrative Region (HKSAR). It was relevant to the right of abode (ROA) provided under the Basic Law. On 10 August 1996, the Preparatory Committee for the HKSAR put forward its views on how Article 24 of the Basic Law should be enforced. The Sino-British Joint Liaison Group also reached consensus on a number of issues relevant to the ROA and such agreement was reflected in the booklet "The Right of Abode in Hong Kong Special Administrative Region" published by the Hong Kong Immigration Department in April 1997. On the basis of the advice of the Preparatory Committee and the consensus arrived at the Joint Liaison Group, the Bill was put forward for members’ consideration.

3. In response to members’ question, D/CEO advised that the Bill did not provide for those who claimed to enjoy the ROA in Hong Kong but had entered or sought to enter Hong Kong unlawfully. The subject matter was being examined by a special Task Force and that in the near future, recommendations would be made on how this issue would be tackled.

Ordinarily resident

4. On the definition of "ordinarily resident", the Principal Government Counsel (PGC) advised that it was defined, having regard to the prevailing legal principle in force and it was also consistent with the announcement of the Hong Kong and Macao Affairs Office dated 13 April 1997. He further explained that a Hong Kong resident who stayed away from Hong Kong due to study or overseas work assignments would be considered to be ordinarily resident in Hong Kong during the period of absence but tourists and persons employed as contract workers under a Government importation of labour scheme or as imported domestic helpers would not be treated as ordinarily resident in Hong Kong.

5. Responding to members’ further queries, PGC clarified that as new immigrants from China would be subject to restriction on the period of stay in Hong Kong, they would not be treated as permanent residents. However, they would acquire the status if they had been ordinarily resident in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the HKSAR.

6. Regarding illegal immigrants, D/CEO advised that depending on individual circumstances, they would either be removed to the place of origin or be permitted to stay in Hong Kong subject to the approval of the Director of Immigration. However, they would not be regarded as ordinarily resident in Hong Kong and therefore would not qualify for the ROA even if they resided in Hong Kong for more than 7 years.

Nationality Law of the People ' s Republic of China

7. The Bills Committee noted that under the Nationality Law of the People ' s Republic of China, Hong Kong residents who were of Chinese descent and born in Chinese territory (including Hong Kong), and others who satisfied prescribed conditions would be entitled to the status of Chinese citizenship.

8. The Bills Committee considered that whilst it might be necessary and helpful to seek legal advice from the Chinese side on the interpretation of certain provisions in the Chinese Nationality Law as applied in HKSAR after 1 July 1997, they were of the view that the "Interpretation of Chinese Nationality Law when applying in the HKSAR" passed by the Standing Committee of the National People ' s Congress on 15 May 1996 provided a necessary and useful aid for such interpretation, bearing in mind the National People ' s Congress was the authority to interpret Chinese laws. Members therefore considered that the Bill should proceed within the existing framework.

9. As to whether it was necessary to include the details of the Interpretation passed by the Standing Committee of the National People ' s Congress on 15 May 1996 in the present Bill, PGC replied that since the Interpretation passed by the National People ' s Congress was a legal interpretation, it was considered not necessary to incorporate the details of the interpretation in the Bill. However, the definition of "Chinese Citizen" in the Bill would refer to the Interpretation. He further advised members that the Nationality Law of the People ' s Republic of China would be applied locally with effect from 1 July 1997 by way of promulgation.

Children of new immigrants

10. The Bills Committee expressed grave concern that children born in Hong Kong to new immigrants from China would not have the ROA at birth if their fathers or mothers were not settled at the time of their birth. They questioned whether the draft provision under paragraph 2(a) of Schedule 1 to the Bill was consistent with the Basic Law, particularly in regard to the legitimate right of citizens provided in Article 24 of the Basic Law and whether litigation against the HKSAR Government would result.

11. D/CEO explained that the Bill was fully consistent with the announcement of the Hong Kong and Macao Affairs Office on 13 April 1997, and reflected the agreement reached by the Sino-British Joint Liaison Group. It was also consistent with the existing law in Hong Kong which was the basis on which paragraph 2(1) of Article 24 of the Basic Law was drafted. Since Basic Law was a constitutional document embodying only the basic principles and policies, domestic legislation had to be enacted with the necessary supplementary details.

12. At the request of the Bills Committee, D/CEO undertook to consider reviewing at some future date the existing administrative measure of imposing limits of stay on one-way permit holders with a view to permitting children born to new immigrants to qualify for the ROA immediately at birth. However, new immigrants from China would still have to have seven years of residence before they became permanent residents of Hong Kong. The limit of stay could not be removed immediately because the Immigration Department could not handle the large number of one-way permit holders already in Hong Kong. CE'S Office

CE ' s Office

Children of permanent residents

13. Mr. TSANG Yok-sing indicated that in accordance with the provision in paragraph 2(a) of Schedule 1 to the Bill, Chinese citizens born in Hong Kong to permanent residents who were not settled in Hong Kong at the time of their birth or at any later time, would be deprived of the right to obtain the ROA at birth. He considered that this was unreasonable and unfair, in particular, when a person of Chinese nationality born outside Hong Kong to a parent who was a Hong Kong permanent resident would qualify for the ROA at birth provided in paragraph 2(c) of Schedule 1 to the Bill. In reply, D/CEO undertook to consider moving a Committee Stage amendment to paragraph 2(a) of Schedule 1 by extending it to cover a Chinese citizen born in Hong Kong to a permanent resident who had the ROA.

Descendants of indigenous villagers

14. Responding to members’ questions, D/CEO advised that an indigenous villager who was born in Hong Kong had the ROA if one of the parent had settled in Hong Kong at the time of his birth or at any later time. If he had subsequently emigrated to a foreign country, he would retain the ROA under paragraph 2(1) of Article 24 of the Basic Law provided that he did not make a declaration of change of nationality. His children born in foreign countries (2nd generation) would have the ROA under paragraph 2(3) of Article 24 of the Basic Law if they did not make a declaration of change of nationality. However, the Basic Law did not provide for a third generation born outside Hong Kong to have the ROA. This was similar to the current rights that indigenous villagers and their descendants could enjoy.

Children of former permanent residents

15. The Bills Committee also sought clarification from the CE ' s Office as to whether children born outside Hong Kong to former permanent residents needed to return to Hong Kong before 30 June 1997 in order to qualify for the ROA. D/CEO advised that if such children did not qualify as Chinese citizens under the Nationality Law of the People ' s Republic of China as applied to the HKSAR, they would lose the ROA but acquire instead the right to land in Hong Kong under the new Section 7A irrespective of whether they were physically in Hong Kong on or before 30 June 1997. However, they could, if they wished, acquire ROA if they satisfy the conditions under paragraph 2(d) of Schedule 1 to the Bill.

Establishing permanent residence

16. Members noted that for the purpose of establishing permanent residence in -Hong Kong under paragraph 5(3) of Schedule 1 to the Bill, a person on attaining the age of 21 years ceased to be a permanent resident of the HKSAR under paragraph 2(f) of Schedule 1 but they could, if they wished, apply to the Director of Immigration for the status of a permanent resident under paragraph 2(d) at any time. In case they did not apply for permanent residence, they would still be entitled, inter alia, to the right to land granted under the new Section 7A but would be deprived of the rights to enjoy other social benefits provided solely to Hong Kong permanent residents.

17. The Bills Committee considered in depth the relevance of requiring an applicant to submit information as to whether he was able to support himself without assistance from public funds and/or whether he had outstanding tax liabilities in order to establish permanent residence in Hong Kong. PGC explained that the 4 items of information under paragraph (3)(1)(a) of Schedule 1 to the Bill would facilitate the Director of Immigration to assess whether a returnee was taking Hong Kong as their habitual place of residence. If necessary, the Director might demand further information. After deliberation, the CE ' s Office would examine the Committee ' s suggestion to introduce a Committee stage amendment to amend paragraphs (3)(1)(a)(iii) & (iv) of Schedule 1 to "whether the person has a reasonable means of income to support himself and his family" and "whether the person has paid his taxes in accordance with the law" respectively. CE'S Office

18. The Bills Committee noted that as a matter of evidence, there was a need for applicants to supply relevant information to substantiate their applications for permanent residence in case the Director of Immigration had any doubt about their claimed eligibility. The onus of proof had all along laid with the applicants and hence, the provision was not new and did not contradict any legal principle.

Transitional arrangements

19. The Bills Committee noted that suitable provisions had been included in Clause 6 of the Bill to provide for the transitional arrangements for those who were not of Chinese nationality but who were permanent residents of Hong Kong before 1 July 1997 so that they did not need to go through a procedure to establish their entitlement under paragraph 3 of Schedule 1 to the Bill. They also noted that a person who was of Chinese nationality and had the ROA in Hong Kong before the establishment of the HKSAR would continue to enjoy the ROA in Hong Kong as long as he remained a Chinese citizen.

Parent and child relationship

20. The Bills Committee noted that under paragraph 1 (2)(a) and (b) of Schedule 1 to the Bill, the relationship of mother and child should be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but the relationship of father and child should be taken to exist only between a man and any legitimate or legitimated child born to him. Against this background, Mr KAN Fook-yee asked if these were in contravention of any legislation against sexual discrimination. PGC explained that as a matter of evidence, to prove that a child was the natural child of a woman was relatively simple. However, it would be extremely difficult if not impossible to prove that an illegitimate child was the child of a purported father. To allow this would also open to abuse and would not be in the interests of the public. The provisions in paragraph 1(2) of Schedule 1 were necessary and not inconsistent with any provision of the Basic Law, or any other local legislation.

21. The Bills Committee noted that for the purpose of establishing a parent and child relationship in respect of an adopted child, the child had to be adopted within Hong Kong in accordance with the Adoption Ordinance (Cap. 290), but not to those children adopted in the mainland or overseas. The requirement was to safeguard against false adoption as a means to bring the child to Hong Kong.

One-way Permit System

22. Mr YEUNG Chun-kam pointed out that PRC nationals married to Hong Kong residents would be subject to the One-way Permit System if they wished to come to Hong Kong for family reunion and settlement whereas foreign nationals would be free from such restriction. He opined that such an arrangement was unfair. In reply, D/CEO explained that given the geographical proximity and connections between Hong Kong and the mainland, the One-Way Permit System was necessary to facilitate orderly arrival of PRC nationals coming to settle in Hong Kong for family reunion. The current daily quota had ensured a manageable flow of PRC citizens into Hong Kong, having regard to the need to provide adequate social support to the community.

Discretionary power

23. Mr Bruce LIU queried the rationale for revoking the discretionary power of the Director of Immigration to allow illegal immigrants to obtain the ROA under Clause 2(2)(b). He indicated that this might undermine confidence in the HKSAR Government and result in uncertainties to those illegal immigrants who were permitted to stay in Hong Kong between 1 July 1990 and 30 June 1997.

24. D/CEO explained that presently, the Director of Immigration might, on compassionate or humanitarian grounds, allow an illegal immigrant to remain in Hong Kong. In order to give a clear message to potential illegal immigrants that they had to return to their home countries after 1 July 1997, the proposed amendment was necessary. The proposal was also in line with the recommendations of the Preparatory Committee. Upon implementation, the Director of Immigration would still retain his discretionary powers to allow illegal immigrants entering Hong Kong after 1 July 1997 to remain in Hong Kong. But these people would not be able to obtain the ROA.

25. Mr Li Ka-cheung expressed concern about the discretionary power granted to the Director of Immigration, in particular during the interim period in which the subsidiary legislation was not yet in place. In reply, D/CEO advised that there were a number of safeguards in the Immigration Ordinance. She would provide detailed information in respect of the various existing appeal and complaint channels provided by the Department after the meeting. CE'S Office

(Post meeting note¡GThe requested information was circulated to members vide PLC Paper No. 426/96-97(05) dated 12 June 1997)

26. In response to Mr WONG Ying-ho, D/CEO undertook to provide further information on the criteria for granting unconditional stay status to those persons who were permitted to stay in Hong Kong. CE'S Office

(Post meeting note¡GThe requested information was circulated to members vide PLC Paper No. 426/96-97(05) dated 12 June 1997)

27. In response to Mrs Elsie TU, D/CEO undertook to provide further information on the procedures for handling applications from children who claimed to be born in Hong Kong but whose birth were not registered in Hong Kong. CE'S Office

(Post meeting note¡GThe requested information was circulated to members vide PLC Paper No. 426/96-97(05) dated 12 June 1997)

28. Having examined the policy issues of the Bill, the Chairman took members through the Bill clause by clause. In concluding the discussion, the Chairman reminded members to give adequate notice if they wished to move Committee Stage amendments to the Bill.

II Date and venue of the next meeting

29. Members agreed that an additional meeting should be held on Friday, 13 June 1997, at 8:00 p.m. to meet with deputations and to discuss the outstanding issues arising from the meeting with the CE ' s Office.

30. There being no other business, the meeting ended at 3:15 p.m.

Provisional Legislative Council Secretariat
13 August 1997