Provisional Legislative Council

PLC Paper No. CB(2) 1034

Paper for the House Committee
meeting on 20 February 1998

Report of the Bills Committee on
Immigration (Amendment) Bill 1998

Purpose

1.This paper reports on the deliberations of the Bills Committee on the Immigration (Amendment) Bill 1998 and seeks members’ support for the Bill to resume its Second Reading debate on 4 March 1998.

The Bill

.2.Introduced into the Provisional Legislative Council on 14 January 1998, the Bill seeks :

1. to disapply the special provisions now applicable only to Vietnamese arriving in Hong Kong as contained in Part IIIA of the Immigration Ordinance (Cap. 115) (the Ordinance);

2. to clarify the powers relating to detention of persons pending removal from Hong Kong; and

3. to empower Assistant Director of Immigration to exercise the powers to make removal orders and order detention that are currently exercisable only by the Director of Immigration and his Deputy.

3.The clause providing for the disapplication of Part IIIA of the Ordinance, if enacted, shall be deemed to have come into operation on the gazette date of the Bill, i.e. 9 January 1998.

The Bills Committee

4.At the House Committee meeting held on 23 January 1998, members decided that a Bills Committee should be formed to study the Bill. The membership list of the Bills Committee is in Appendix.

5.Under the chairmanship of Hon Howard YOUNG, the Bills Committee held a meeting with the Administration.

Deliberations of the Bills Committee

6.The gist of deliberations of the Bills Committee is summarized below.

Abolition of port of first asylum policy

7.Part IIIA of the Ordinance contains special provisions dealing with unauthorized arrivals of Vietnamese, allowing for detention, screening and review of screening decision in line with the "port of first asylum policy". The Bills Committee is in support of the decision to abolish that policy, and hence the disapplication of Part IIIA of the Ordinance so that the provisions enshrining that policy do not apply to new arrivals in Hong Kong.

Retrospective effect of the Bill

8.The Bills Committee has noted that clause 2 which provided for the disapplication of Part IIIA of the Ordinance to new illegal arrivals of Vietnamese, if enacted, would take effect from the Bill’s gazette date. The Committee has expressed concern about the retrospectivity of the Bill.

9.The Administration has explained that it would not propose legislation with retrospectivity lightly. If the Administration simply makes an announcement on the abolition of the "port of first asylum policy" without bringing into effect the corresponding legislative amendment, there would be a danger that a large number of new arrivals from Vietnam and Ex-China Vietnamese Illegal Immigrants (ECVIIs) from Mainland China would be tempted to rush to Hong Kong to ask for screening of refugee status or to claim asylum before the Bill comes into effect. To avert a possible influx of new arrivals from Vietnam and ECVIIs while the Bill is being scrutinized by the Provisional Legislative Council, the Administration, therefore, considers that clause 2 should take effect from its gazette date. The Administration has further advised that since the abolition of the "first port of asylum policy" was announced, only 35 Vietnamese illegal immigrants (VIIs) had been intercepted. The Administration has also confirmed that new arrivals from Vietnam and ECVIIs will be treated the same under the Bill.

10.In view of the likely consequences as advanced by the Administration, the Bills Committee accepts that clause 2 be deemed to take effect from 9 January 1998.

The making of removal order against VIIs in future

11.In response to the Bills Committee, the Administration has explained that, with the disapplication of Part IIIA of the Ordinance, VIIs will have to be removed from Hong Kong under section 18 (if removal is effected within two months after arrival in Hong Kong); or section 19 (if removal is effected over two months after arrival in Hong Kong) of the Ordinance. As it would normally take four to six months to remove VIIs after their arrival in Hong Kong, the Administration would have to rely on section 19 in effecting the removal. Under existing section 19, a removal order has to be made personally by the Director or Deputy Director of Immigration, while officers at Senior Principal Immigration Officer level or above are empowered to make removal orders under Part IIIA of the Ordinance. Having regard to the fact that arrivals of about 1 700 VIIs were recorded in 1997, the Director or the Deputy Director would have to devote a disproportionate amount of time to consider these cases, e.g. making the necessary removal orders. The Administration therefore considers it necessary to empower officers at the Assistant Director of Immigration level to make removal orders under section 19 to share out the additional workload.

Recommendations

12.The Bills Committee recommends that :

1. the Second Reading debate of the Bill be resumed at the Provisional Legislative Council meeting on 4 March 1998; and

2. Clause 2 be deemed to take effect from 9 January 1998 to avert a possible surge of new arrivals from Vietnam and ECVIIs from the Mainland before the legislative change could be made.

Advice sought

13.Members are invited to support the recommendations of the Bills Committee at paragraph 12 above.

Provisional Legislative Council Secretariat
17 February 1998

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Appendix

Bills Committee on Immigration
(Amendment) Bill 1998