For information
on 19 February 1998

Provisional Legislative Council
Panel on Security

Application for Settlement
in Hong Kong by Mainland Children
Who Have Right of Abode under the Basic Law

Introduction

This paper reports on the situation as regards the admission of eligible children ¹ from the Mainland for settlement in the Hong Kong SAR.

Background

2.Before 1 July 1997, all legal immigrants were admitted into Hong Kong in line with the Mainland's policy for regulating population flow into Hong Kong and Macau as well as our policy of facilitating family reunion.Upon the coming into effect of the Basic Law (BL) Article 24(2)(3), eligible children are able to come to Hong Kong as a matter of law rather than policy. BL 24(2)(3) is implemented by the Immigration (Amendment) (No. 3) 1997 Ordinance which introduced the Certificate of Entitlement (C of E) Scheme with effect from 1 July 1997, under which their admission remains subject to the One-way Permit (OWP) quota system.

3. In order to reflect the views of members of the Provisional Legislative Council (PLC), the Director of Immigration had forwarded the minutes of PLC Panel on Security meeting held on 25 July 1997 to the Mainland authorities in October 1997.

Admission of Eligible Children

4. Our estimate of the backlog of eligible children (under 20) as at 1 July 1997 was 66 000 ² , based on the best available information.We have no statistics on how many adult eligible children are in the Mainland.The specified sub-quota for eligible children has recently been increased from 45 to 60 within the 150 OWP daily quota as from 1 January 1998.It is possible that another 10 eligible children would be allowed to come to Hong Kong under the unspecified sub-quota.At this rate, it will take 2½ years to clear the bulk of the non-adult eligible children.Between 1 July 1997 and the end of January 1998, a total of 10,388 eligible children have already entered Hong Kong under the C of E Scheme.

Implications of Court Cases

5.Following the enactment of the Immigration (Amendment) (No. 3) Ordinance 1997, parents of many eligible children have challenged the consistency of this piece of legislation with BL 24(2)(3).Four test cases have been granted legal aid for judicial review.On 9 October 1997, the Court of First Instance affirmed the legality of the Ordinance.The Court also affirmed the retrospective effect of this piece of legislation.However, the Court ruled that for a child to qualify under BL 24(2)(3) as an "eligible child", the determining factor was the birth, not the marital status of the child's parents.In other words, the court's judgement means that illegitimate children enjoy the same status as children born in wedlock for the purpose of acquisition of right of abode.

6.The children concerned and their parents have lodged an appeal against those parts of the judgement which are unfavourable to them.The Government have lodged an appeal against the judgement on illegitimacy.The hearing of the Court of Appeal will start on 5 March 1998 has been fixed on 5 March 1998.

7.Another test case concerns the stipulation in the Immigration (Amendment) (No. 2) Ordinance 1997, that in order for a child born outside Hong Kong to enjoy the right of abode (ROA) in Hong Kong, at least one of their parents must have ROA at the time of the child's birth.The parents of a total of 81 Mainland children who were born before either parent had acquired ROA in Hong Kong filed application for judicial review, on the grounds that this provision contravenes BL 24(2)(3), which does not make the same stipulation.The case was heard before the Court of First Instance on 19.1.98 and the Court handed down a judgement on 26.1.98 in the applicant's favour.We have already made an appeal against that judgement.The serious implication of this judgement, which was recognised by the judge, is that it extends the right of abode to Chinese nationals of any age born outside Hong Kong, one of whose parents acquires the right of abode at any time subsequently. Provided, however, the C of E provisions are upheld, it would still be necessary for such a person to obtain a OWP before entering Hong Kong for the purposes of settlement.

8. In the meantime, children involved in the Court cases have been released on recognisance and will not be removed from Hong Kong before legal proceedings are concluded.They may approach schools to request admission, or approach the Education Department to request placement assistance.On a cases by case basis, Immigration Department intend to allow them to attend school temporarily.

Way Forward

9.We will continue to closely monitor the situation to ensure speedy and orderly admission of eligible children.We will also follow closely the court proceedings.

19 February 1998
Security Bureau

1. " Eligible children " refer to children who were born outside Hong Kong to Hong Kong permanent residents and who have the right of abode in the HKSAR under Article 24(2)(3) of the Basic Law.These children could be of any age.

2. The estimate of 66,000 was arrived at taking into account the number of applications under processing by HK Immigration Department, applications pending referral to Immigration Department HK from Mainland Public Security Bureau, verified cases and deducting the number of persons who had already entered Hong Kong.