Provisional Legislative Council

PLC Paper No. 533/96-97
(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 Friday, 13 June 1997, at 9:00 p.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
Hon Eric LI Ka-cheung
Hon LEE Kai-ming
Hon Mrs Elsie TU
Hon Henry WU
Hon MA Fung-kwok
Hon CHEUNG Hon-chung
Hon Mrs Sophie LEUNG LAU Yau-fun
Hon CHAN Choi-hi
Hon TSANG Yok-sing
Dr Hon Philip WONG Yu-hong
Hon YEUNG Chun-kam
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon LAU Kong-wah
Hon Maria TAM

Members Absent :

Dr Hon Raymond HO Chung-tai
Hon Mrs Peggy LAM
Hon Kennedy WONG Ying-ho
Hon KAN Fook-yee

Attendance By invitation :

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

Heung Yee Kuk New Territories
Hon CHOY Kan-pui
Mr MAN Ping-nam

Hong Kong Employers of Overseas
Domestic Helpers Association
Mrs YUNG MA Shan-yee

Hong Kong Society of Chinese Policy and Law
Mr TSANG Hin-wai
Mr LO Wing-hong
Clerk in Attendance :

Andy LAU
Committee Clerk 3
Staff in attendance :

Mr Arthur CHEUNG
Legal Adviser

Mr YUEN Leung-fai
Assistant Committee Clerk 6

I Meeting with deputations

(PLC Paper No. 377/96-97(01))
(PLC Paper No. 377/96-97(03))
(PLC Paper No. 404/96-97(02))

The Chairman welcomed representatives of the Heung Yee Kuk New Territories (HYK), Hong Kong Employers of Overseas Domestic Helpers Association and Hong Kong Society of Chinese Policy and Law to the meeting.

Meeting with HYK

2. At the invitation of the Chairman, representatives of HYK briefed members on their concerns about the Bill as set out in the submission circulated vide PLC Paper No. 377/96-97(01). In gist, they opined that as the descendants of indigenous villagers maintained close connection with their families in Hong Kong and might choose to return to Hong Kong for employment, study or settlement, they urged the Chief Executive ' sOffice (CE ' sOffice) to amend the Bill so as to enable the descendants of indigenous villagers to continue to enjoy the ROA in Hong Kong after 1 July 1997. They said that this was consistent with Article 40 of the Basic Law which provided that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories should be protected by the Hong Kong Special Administrative Region (HKSAR).

3. In reply, the Director/Chief Executive ' sOffice (D/CEO) advised that the concerns of HYK for preserving the right to land currently enjoyed by British citizens were, indeed, more related to the Immigration (Amendment) Bill 1997 which was being considered by the Hong Kong Legislative Council. The Immigration (Amendment) Bill 1997 aimed to bring the immigration status of British citizens into line with those of citizens of other countries. As the special constitutional relationship between Hong Kong and the United Kingdom would come to an end by 30 June 1997, British citizens would no longer enjoy privileges in immigration matters as in the past. In this regard, British citizens would require an appropriate visa before arriving to take up employment, establish or join a business, study or settle in Hong Kong.

4. As for the request of HYK to include a provision specifically to enable the descendants of indigenous villagers to continue to enjoy the ROA in Hong Kong, D/CEO advised that such a request was inconsistent with the Basic Law, and therefore, could not be accepted. However, an indigenous villager who was born in Hong Kong would still be entitled to 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. At present all persons born in Hong Kong were British Dependent Territories citizen (BDTC) with ROA in Hong Kong. The BDTC status could be transmitted to one generation born outside Hong Kong. Thus, the grand-children of indigenous villagers who had emigrated would not have the ROA that come with the BDTC status.

5. Some members sought clarification from the CE ' sOffice 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. They also requested the CE ' sOffice to launch advertising campaign to inform overseas permanent residents of Hong Kong accordingly. The Principal Government Counsel (PGC) advised that the crux of the matter was whether such children were treated as Chinese citizens under the Nationality Law of the People ' sRepublic of China which would be applied locally with effect from 1 July 1997. Article 5 of the Nationality Law of the People ' sRepublic of China provided that any person born abroad whose parents were Chinese nationals or one of whose parents was a Chinese national had Chinese nationality. But a person whose parents were Chinese nationals and had settled abroad or one of whose parents was a Chinese national and had settled abroad and who had acquired foreign nationality on birth did not have Chinese nationality. Under such circumstances, if such children did not qualify as Chinese citizens under the Nationality Law of the People ' sRepublic of China as applied to the HKSAR, they would lose the ROA on 1 July 1997 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.

Meeting with Hong Kong Employers of

Overseas Domestic Helpers Association (the Association)

6. At the invitation of the Chairman, the representative of Hong Kong Employers of Overseas Domestic Helpers Association (the Association) briefed members on their concerns about the Bill as set out in the submission circulated vide PLC Paper No. 377/96-97(03). In brief, the Association welcomed the amendments put forward by the CE ' sOffice. They opined that imported domestic helpers and contract workers under the labour importation scheme should not be treated as ordinarily resident in Hong Kong during the period of their contract in Hong Kong and hence, not qualify for the ROA. This could help preserving the interests of the local labour force and maintaining the social support system in Hong Kong whilst maintaining employment opportunity for imported workers.

7. The Association, however, pointed out that with the transfer of sovereignty on 1 July 1997, Hong Kong would become part of the territory of China. They worried that if there was no clear indication in the law, domestic workers or contract workers from the mainland might claim that they were no longer imported worker but ordinarily resident in Hong Kong and hence, qualify for the ROA provided that they resided in Hong Kong for a continuous period of 7 years during the period of their contract in Hong Kong. The Association therefore suggested that the Bill should be amended by adding "outside Hong Kong Special Administrative Region" after "while employed" in subparagraphs (v) & (vi) of Clause 2 (2) to avoid ambiguity.

8. In reply, PGC advised that in accordance with the definition provided in the Import and Export Ordinance (Cap. 60), "import" meant to bring, or cause to be brought, into Hong Kong any article. As such, imported domestic helper and contract worker under a Government importation of labour scheme should also include those workers coming from the mainland. Notwithstanding the above, the CE ' sOffice undertook to consider the Association ' ssuggestion.

9. PGC further advised that the Bill had already provided for the circumstances under which a person would not be treated as ordinarily resident. In considering the matter, they also took into account the prevailing legal principle in force and the announcement of the Hong Kong and Macao Affairs Office dated 13 April 1997. For those persons who remained in Hong Kong and in breach of a condition of stay imposed by the Director of Immigration, they would not be treated as ordinarily resident.

Meeting with Hong Kong Society of Chinese Policy and Law to the meeting

10. At the invitation of the Chairman, representatives of the Hong Kong Society of Chinese Policy and Law (the Society) briefed members on their concerns about the Bill as set out in the submission circulated vide PLC Paper No. 404/96-97(02).

11. On the definition of "settled", the Society considered that a person should not be regarded as settled in Hong Kong simply because he took up employment in Hong Kong. Rather, the consideration should be whether Hong Kong was regarded as his place of permanent residence. In reply, PGC advised that the term "settled" was used after having regard to the prevailing legal principle in force. A person would only be regarded as settled in Hong Kong if he was ordinarily resident in Hong Kong and was not subject to any restriction on his stay in Hong Kong. He further advised that for the sake of clarity, the circumstances under which a person would be treated as ordinarily resident had also been incorporated in Clause 2(2) of the Bill.

12. Regarding those Chinese citizens who were born in the mainland to parents of permanent resident of Hong Kong and claimed to enjoy the ROA in Hong Kong, the Society was of the view that a parental relationship should only be taken to exist between parents and any legitimate child born to them. In order to qualify for the ROA, the children had to enter Hong Kong legally and ordinarily resided in Hong Kong for a continuous period of not less than 7 years. The CE ' sOffice noted the Society ' scomments.

13. Responding to the Society ' scomments, D/CEO advised that for the purpose of establishing a parent and child relationship in respect of an adopted child, the child has 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.

II Meeting with representatives of the Chief Executive ' sOffice

(PLC Paper No. 377/96-97(02))
(PLC Paper No. 404/96-97(01))
(PLC Paper No. 426/96-97(03))
(PLC Paper No. 414/96-97(01))
(PLC Paper No. 426/96-97(04))
(PLC Paper No. 414/96-97(02))
(PLC Paper No. 414/96-97(03))
(PLC Paper No. 427/96-97(01))
(PLC Paper No. 431/96-97(01))

14. Members examined the submissions received by the Bills Committee.

15. Referring to the submission of Mr Nigel KAT which was tabled at the meeting and circulated to members vide PLC Paper No 441/96-97(01) after the meeting, PGC advised that as a matter of evidence, there was a need for applicants to supply relevant information to substantiate their applications for permanent residence even if this was a right conferred upon him by the Basic Law. He reiterated 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. Since Basic Law was a constitutional document embodying only the basic principles and polices, domestic legislation had to be enacted with the necessary supplementary details.

On the queries about 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. In response to members’ suggestion, they would introduce CSAs accordingly (see paragraph 20 below). Further, such information would only be requested if they were considered necessary.

Committee Stage amendments (CSAs)

(PLC Paper No. 433/96-97)

16. The Chairman took members through the CSAs clause by clause. Members noted that apart from a series of technical and textual amendments, the CE ' sOffice had also taken on board a number of suggestions of the Bills Committee to clarify the meaning of certain provisions and improve the drafting of the Bill. The more important ones were as follows:

Clause 2(3)

17. PGC advised that in response to Mr Bruce LIU, they agreed to make amendments to clarify the clause under which the Director of Immigration would have discretionary power to allow those illegal immigrants who were permitted to stay in Hong Kong with the authority of the Director of Immigration during the period from 1 July 1990 to 30 June 1997 inclusive to obtain the ROA.

Clause 5

18. Having consulted the Director of Immigration, D/CEO advised that it would be more appropriate to retain Section 66 of the Immigration Ordinance (Cap. 115) so as to cater for the re-entry of former deportees to Hong Kong.

Clause 6

19. In response to members’ request, PGC advised that paragraph 2(a) of Schedule 1 was amended so that 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 now be entitled to the ROA.

20. Regarding the information required for establishing permanent residence in Hong Kong, the CE ' sOffice agreed to introduce amendments to 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 as per members’ request.

21. Members noted that for clarity purpose, a new sub-paragraph was added to paragraph 6 so that a person who was of Chinese nationality and had a ROA in Hong Kong before the establishment of the HKSAR continued to enjoy the ROA in Hong Kong as long as he remained a Chinese citizen.

Clause 7

22. Similar to the amendments in Clause 5, it was considered more appropriate to retain Schedule 2 to the Immigration Ordinance (Cap. 115) so as to cater for the re-entry of former deportees to Hong Kong.

Conclusion

23. In concluding the discussion, the Chairman said that the Bills Committee was generally in support of the Bill and the CSAs to be moved by the CE ' sOffice. As such, he would make a verbal report on behalf of the Bills Committee at the House Committee meeting on 14 June 1997, recommending the resumption of Second Reading debate of the Bill on 21 June 1997. In response to the Chairman ' senquiry, Mr Bruce LIU said that he would inform the Chairman whether he would move CSAs on the Bill before the House Committee meeting held on 14 June 1997.

24. The meeting ended at 10:45 p. m.


Provisional Legislative Council Secretariat
13 August 1997