Amend the Immigration Ordinance.        Enacted by the Provisional Legislative Council. 1.        Short title and commencement           (1)        This Ordinance may be cited as the Immigration (Amendment) (No. 3) Ordinance 1997.           (2)        This Ordinance comes into operation on 1 July 1997. 2.        Interpretation           (1)        Section 2(1) of the Immigration Ordinance (Cap. 115) is amended in the definition of "child" by adding ", for the purposes of Part IIIA," before "means".           (2)        Section 2(4) is amended -     (a)        in paragraph (a) by repealing "after the commencement of this Ordinance";     (b)        in paragraph (a)(i) by adding ,"with or" before "without";     (c)        in paragraph (a)(ii) by adding "a condition of stay which may include" after "contravention of";     (d)        in paragraph (a) by adding - "(v)        while employed as a contract worker under a Government importation of labour scheme; or (vi)        while employed as an imported domestic helper; or (vii)        as a member of a consular post within the meaning of the Consular Relations Ordinance (Cap. 259); or (viii)        as a member of the Hong Kong Garrison; or".         (3)        Section 2 is amended by adding -        "(5)Subsection (4)(a) does not apply to a person who acquired the right of abode in Hong Kong before 1 July 1997 or, with the Director's consent, to a person who remains in Hong Kong with the authority of the Director after landing unlawfully during the period between 1 July 1990 and 30 June 1997 inclusive.         (6)For the purposes of this Ordinance, a person does not cease to be ordinarily resident in Hong Kong if he is temporarily absent from Hong Kong. The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong. The circumstances may include - (a)        the reason, duration and frequency of any absence from Hong Kong; (b)        the ownership of any property, both inside and outside Hong Kong; (c)        employment by a Hong Kong based company; and (d)        the whereabouts of the principal members of his family (spouse and minor children).". 3.        Section added The following section is added after section 7 - "7A. Former Hong Kong permanent residents         (1)Subject to subsection (2), a person who had the right of abode in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region but who loses the right after the establishment of the Hong Kong Special Administrative Region has the right - (a) to land in Hong Kong; (b) not to have imposed upon him any condition of stay in Hong Kong which may include a limit of stay, and any condition of stay that is imposed has no effect; and (c) not to have a removal order made against him.         (2)        If a deportation order is made against the person, the right to land under subsection (1) ceases while the deportation order is in force.". 4.        Burden of proving certain matters (1)        Section 64(ve) is repealed. (2)        Section 64 is amended - (a)        by adding - "(ia) has been ordinarily resident in Hong Kong for 7 years; (ib) has settled or has returned to settle in Hong Kong before 1 July 1997; (ic) has returned to settle in Hong Kong before 1 January 1999; (id) has not ceased to be ordinarily resident in Hong Kong for a continuous period of not less than 36 months; (ie) was born in Hong Kong; (if) was a Hong Kong permanent resident before 1 July 1997;"; (b)       by adding - "(vaa) is a Chinese citizen;". 5.        Transitional provisions     Section 66 is repealed. 6.        Schedule 1 repealed and replaced     Schedule 1 is repealed and the following substituted - "SCHEDULE 1 [ss. 2(1) & 59A] PERMANENT RESIDENTS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION 1.        Interpretation           (1)In this Schedule, unless the context otherwise requires -     "Chinese citizen" ( 中國公民 ) means a person who has Chinese nationality under the Chinese Nationality Law as elaborated in the "Interpretation of Chinese Nationality Law when applying to the Hong Kong Special Administrative Region" passed by the Standing Committee of the National People's Congress on 15 May 1996;     "new born infant" ( 初生嬰兒 ) means a child under the age of 12 months or a child who appears to the Director to be under the age of 12 months.           (2)The relationship of parent and child is taken to exist as follows - (a) of a mother and child, between a woman and a child born to the mother in or out of wedlock; (b) of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and a child subsequently legitimated by the marriage of his parents; (c) of a parent and adopted child, between a parent and a child adopted in Hong Kong only in accordance with the Adoption Ordinance (Cap. 290).        (3)For an abandoned new born infant found within Hong Kong, - (a) a new born infant, who appears to the Director to be of Chinese descent, is taken, in the absence of evidence to the contrary, to be the legitimate child of a Chinese citizen who was a Hong Kong Special Administrative Region permanent resident at the time of birth of the child. (b) a new born infant, who appears to the Director to be not of Chinese descent, is taken, in the absence of evidence to the contrary, to be the legitimate child of a parent not of Chinese nationality who had the right of abode in the Hong Kong Special Administrative Region under paragraph 2(d) at the time of birth of the child.         (4)For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years - (a) for a person under paragraph 2(b), at any time before or after the establishment of the Hong Kong Special Administrative Region; and (b) for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.         (5)A person has settled in Hong Kong if - (a) he is ordinarily resident in Hong Kong; and (b) he is not subject to any restriction on the period of stay in Hong Kong. 2.       Permanent resident of the Hong Kong Special Administrative Region        A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region - (a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his father or mother has settled in Hong Kong at the time of the birth of the person or at any later time. (b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region. (c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (a) or (b) if the parent has the right of abode in Hong Kong at the time of the birth of the person. (d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region. (e) A person under 21 years of age born in Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (d) before or after the establishment of the Hong Kong Special Administrative Region if at the time of his birth or at any later time before he attains 21 years of age, one of his parents has the right of abode in Hong Kong. (f) A person other than those residents in categories (a) to (e), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only. 3.       Establishing permanent residence under paragraph 2(d) (1)For the purposes of paragraph 2(d), the person is required - (a) to furnish information that the Director reasonably requires to satisfy him that the person has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region. The information may include the following - (i) whether he has habitual residence in Hong Kong; (ii) whether the principal members of his family (spouse and minor children) are in Hong Kong; (iii) whether he is able to support himself without assistance from public funds; (iv) whether he has outstanding tax liabilities; (b) to make a declaration in the form the Director stipulates that he has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region; the declaration for a person under the age of 18 years must be made by one of his parents or by a legal guardian; and (c) to have settled in Hong Kong at the time of the declaration.       (2)A person claiming to have the status of a permanent resident in the Hong Kong Special Administrative Region under paragraph 2(d) does not have the status of a permanent resident in the Hong Kong Special Administrative Region until he has applied to the Director and the application has been approved by the Director.       (3)For the purposes of paragraph 2(d), a person is taken to have entered Hong Kong on a valid travel document - (a) if he entered Hong Kong before 1 July 1997 with an expired travel document or with a travel document that was not a valid travel document but was permitted to remain by an immigration officer or an immigration assistant; or (b) if he was born in Hong Kong and was permitted to remain in Hong Kong by an immigration officer or an immigration assistant. 4.        Establishing permanent residence under paragraph 2(e)     (1)For the purposes of paragraph 2(e), the person on attaining the age of 21 years ceases to be a permanent resident of the Hong Kong Special Administrative region and may apply to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) at any time.     (2)Section 7A applies to a person who ceases to have the status of a permanent resident of the Hong Kong Special Administrative Region under this paragraph. 5.        Establishing permanent residence under paragraph 2(f)     (1)For the purposes of paragraph 2(f), the person is required - (a) to furnish information that the Director may reasonably require to determine whether that person had the right of abode only in Hong Kong immediately before the establishment of the Hong Kong Special Administrative Region; and (b) to make a declaration that he had the right of abode only in Hong Kong immediately before the establishment of the Hong Kong Special Administrative Region; the declaration for a person under the age of 18 years must be made by one of his parents or by a legal guardian.     (2)If the person claims that he had no right of abode in a place that the Director reasonably believes that he had, the onus of proving that he did not have the right of abode lies on the person.     (3)A person under 21 years of age born in Hong Kong on or after 1 July 1997 to a parent who is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) at the time of the birth of the person is taken to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) if, but for this subparagraph, the person has no right of abode in any place including Hong Kong. The person on attaining 21 years ceases to be a permanent resident of Hong Kong Special Administrative region and may apply to the Director for the status of a permanent resident of Hong Kong Special Administrative Region under paragraph 2(d) at any time. Section 7A applies to a person who ceases to have the status of a permanent resident of the Hong Kong Special Administrative Region under this paragraph. 6.        Transitional     A person who is not of Chinese nationality and who was a permanent resident of Hong Kong before 1 July 1997 is taken to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) and exempt from the requirements under paragraph 3 if- (a) he had settled in Hong Kong immediately before 1 July 1997; (b) after he ceased to have settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong within the period of 18 months commencing on 1 July 1997; or (c) after he ceased to have settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong after the period of 18 months commencing on 1 July 1997 but only if he has not been absent from Hong Kong for a continuous period of not less than 36 months. 7.        Loss of the right of abode        permanent resident of the Hong Kong Special Administrative Region loses the right of abode in the Hong Kong Special Administrative Region only if - (a) being a person falling within the category in paragraph 2(d) or (e) has been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong; or (b) being a person falling within the category in paragraph 2(f) has ceased to have ordinarily resided in Hong Kong for a continuous period of not less than 36 months since he obtained the right of abode in any place other than Hong Kong. 7.        Schedule 2 repealed        Schedule 2 is repealed. Explanatory memorandum        This Bill amends the Immigration Ordinance to cater for the right of abode guaranteed under the Basic Law. 2.Clause 2 amends section 2 of the principal Ordinance to make clear that the concept of ordinarily resident is not affected by temporary absences from Hong Kong. (Proposed section 2(6)) 3.Apart from some other consequential amendments to section 2 of the principal Ordinance, clause 2 makes it clear that time spent in Hong Kong for work as an imported domestic worker or under a Government importation scheme or as a consular official or as a member of the Hong Kong Garrison does not count towards ordinary residence for the acquisition of the right of abode. 4.Clause 3 adds new section 7A to provide for the right to land in Hong Kong for persons who lose the right of abode under paragraph 5 of Schedule 1. 5.Clause 4 adds the requirement that proof that a person is a Chinese citizen or of certain other facts lies with the person to section 64 of the principal Ordinance. 6.Certain old and spent transitional provisions are repealed by clause 5. 7.Clause 6 repeals and replaces Schedule 1. The new Schedule describes the 6 categories of permanent residents of the Hong Kong Special Administrative Region. The Schedule also describes how a person is to establish permanent residence in certain categories. Paragraph 7 of the Schedule describes the ways in which the right of abode may be lost in certain circumstances. 8.Clause 7 repeals Schedule 2 which relates to transitional issues that are spent.

(Members of the public are welcome to express their views on the Bills, by writing to the Provisional Legislative Council Secretariat at 3/F, Huaxia Art Centre, No. 1 Guangqiao Street, Overseas Chinese Town, Shenzhen)