LC Paper No. CB(2) 1846/98-99

Ref.: CB2/H/1

This paper gives a brief background of the issue, including the various forecasts made on the number of people in the Mainland entitled to the right of abode (ROA) under the Basic Law (BL), for Members' reference.

Article 24 of Basic Law, Immigration (Amendment) (No. 2) Ordinance 1997 and Immigration (Amendment) (No. 3) Ordinance 1997

2. The Immigration (Amendment) (No. 3) Ordinance 1997 was enacted on 10 July 1997, with retrospective effect from 1 July 1997, to provide procedures by which persons may establish their entitlement to ROA in the Hong Kong Special Administrative Region (HKSAR) under category 3 of Article 24(2) of the BL. This Ordinance, through introduction of the Certificate of Entitlement (C of E) Scheme, provided that a person's status as a permanent resident of the HKSAR under category 3 of BL 24(2) could only be established by his/her holding, among other things, a valid travel document with a valid C of E affixed to it. For persons in the Mainland claiming ROA, this means that they would have to apply in the Mainland for a One-way permit (OWP) and a C of E in order to come to Hong Kong for settlement.

3. The Immigration (Amendment) (No. 2) Ordinance 1997 was enacted by the Provisional Legislative Council (PLC) on 21 June 1997 to take effect on 1 July 1997. It stipulated, among other things, that for a person of Chinese nationality to be eligible for ROA under category 3 of BL 24(2), at least one of his/her parents who is of Chinese nationality must be a permanent resident under category 1 or 2 of BL 24(2) at the time of his/her birth. Another provision stipulated that in order to be entitled to ROA under BL 24, a person born out of wedlock may acquire the status of a Hong Kong permanent resident only through his/her mother, and not the father, unless the mother and father subsequently married.

Court Cases

4. On 9 October 1997, the Court of First Instance, in a test case, affirmed the legality of the Immigration (Amendment) (No. 3) Ordinance 1997 and the C of E Scheme. The Court also affirmed that the retrospective effect of the Ordinance was valid and constitutional. In addition, the Court ruled that for a child to be qualified under category 3 of BL 24(2) as an "eligible child", the determining factor was the birth, not the marital status of the child's parents.

5. The Government lodged an appeal against the judgment on the issue of the entitlement of children born out of wedlock. The Court of Appeal made a decision on 2 April 1998, upholding the lawfulness of the C of E Scheme and its retrospectivity, but the C of E Scheme was held not to apply to persons who are here and came to Hong Kong before 1 July 1997. The provisions excluding these children from the ambit of category 3 of BL 24(2) was ruled unconstitutional.

6. Another test case concerns the stipulation in the Immigration (Amendment) (No.2) Ordinance 1997 that in order for a child of Chinese nationality born outside Hong Kong to enjoy ROA in Hong Kong, at least one of his parents should be of Chinese nationality and had ROA at the time of the child's birth. The Court of First Instance handed down its judgment on 26 January 1998 holding that the provision contravened BL 24. The Government lodged an appeal against this judgment. On 20 May 1998, the Court of Appeal overturned the Court of First Instance's ruling and made a judgment that the "at the time of birth" provision was consistent with the BL.

7. All parties concerned in these cases lodged appeals against the respective parts of the judgments which were not in their favour. The Court of Final Appeal (CFA) delivered its judgment on 29 January 1999. The main issues determined in the judgment, apart from the interpretation of the BL, are as follows -

1. The C of E Scheme is consistent with the BL. Those who claim ROA under category 3 of BL 24(2) can only have their status as a permanent resident of the HKSAR established by holding a C of E;
   
   
2. Those who claim ROA must remain in the Mainland in order to apply for a C of E;
   
   
3. The C of E needs not be affixed to the OWP;
   
   
4. The retrospective effect of the Immigration (Amendment) (No. 3) Ordinance 1997 was ruled unconstitutional;
   
   
5. Children born in places outside Hong Kong (including the Mainland) to parents, either of whom was not a Hong Kong permanent resident at time of their birth but subsequently became one, are also entitled to ROA; and
   
   
6. These children include those born out of wedlock to a father who is a permanent resident of Hong Kong.

Forecasts of Number of Eligible Persons for ROA

Figures provided by Secretary for Security at the Council Meeting on 28 April 1999

8. In her speech delivered during the motion debate on "New Arrivals from the Mainland" at the Council meeting on 28 April 1999, the Secretary for Security (S for S) announced that based on the findings of the mid-April survey conducted by the Census and Statistics Department (C & SD), the number of persons in the Mainland with ROA in Hong Kong as a result of the judgment of the CFA reached 1 675 000, of which 692000 were eligible children of the first generation while 983000 were eligible children of the second generation. The breakdown is as follows -

Type of Eligible Persons	No. of Additional Eligible Persons of the First Generation with ROA	No. of Eligible Persons of the Second Generation	Grand Total
Children born of registered marriage	172 000	338 000	510 000
Children born out of registered marriage	520 000	645 000	1 165 000
Grand Total :	692 000	983 000	1 675 000

9. S for S also made the following points at the Council meeting on 28 April 1999 -

1. Under the BL, when these persons with ROA had lived in Hong Kong for seven years, their children born in the Mainland would also be entitled to ROA, with the right passing onto the future generations indefinitely;
   
   
2. If the Administration continued to admit only 150 persons each day, C of E applicants would have to wait for ten years or more. If all of the 700000 eligible persons of the first generation were to be admitted within three years, 640 OWP holders, on average, would need to be admitted each day; and
   
   
3. The C & SD had found that there were also about 100 000 spouses of Hong Kong residents still living in the Mainland who were eligible for settlement in Hong Kong. The daily quota might need to be increased to 1 000.

Previous Forecasts Made

10. Members may wish to note that the Administration had on previous occasions provided figures on the eligible number of children/persons, as detailed in paragraphs 11 - 20 below.

February 1995

11. In his speech delivered during the motion debate on "Entry of spouses and children of HK residents from China" held at the sitting of the former Legislative Council on 22 February 1995, the then S for S mentioned the figure of 64 000 children. His exact words were "Clearly, one issue which we are addressing is the admission of the estimated 64 000 children who will have the right of abode in Hong Kong on 1 July 1997, in accordance with the terms of the Joint Declaration and the Basic Law".

April 1997

12. However, in the reply to a written question on "One-way exit permit holders" asked by Hon LAU Chin-shek at the Council sitting on 23 April 1997, the figure provided by S for S was around 35 000 children. The same figure was given in an information paper of 24 April 1997 prepared by the Security Branch (SB) for the Panel on Security of the former Legislative Council. In the paper, SB estimated that "around 35 000 eligible children will still be in China as at 1.7.97". SB also informed Members that "at the current rate, these children can all be admitted to Hong Kong by the end of 1998. It should be noted that we do not have the total number of applications in China which have not yet been forwarded to us for verification".

July 1997

13. In the PLC Brief on the Immigration (Amendment) (No.5) Bill 1997 (enacted as Immigration (Amendment) (No. 3) Ordinance 1997) issued by the Security Bureau, it was stated that "in 1996, we conducted a special survey through the General Household Survey and estimated that the number of eligible children awaiting to come to Hong Kong under the OWP system on 1.7.97 would be around 35 000. However, a recent update which takes into account additional information from the Public Security authorities suggested that the number is probably in the region of 66 000".

14. In the same PLC brief, the Bureau informed Members that three possible solutions to the problem had been considered. They included amending the BL, seeking an interpretation of the BL from the Standing Committee of the National People's Congress (NPCSC); or requiring eligible children to produce a C of E before they could enter and remain in Hong Kong and to continue to regulate their entry by way of the OWP system.

15. The Brief went on to say that amending the BL would be conclusive but could only be the last resort. An interpretation from the NPCSC would need to be supported by local legislation. Both of these options would take time and would not be available to deal with the immediate problem. The C of E Scheme was the only viable solution in the medium term.

16. The Brief also explained that the larger inflow would necessitate the operation of additional induction/English programmes and short-term preparatory courses. For classes to be operated soon, the Education Department (ED), schools and non-government organizations will take action to make necessary preparations. The ED would set up a central coordinating unit to oversee the provision of support services and would strengthen its placement service. It would also extend its teacher recruitment information service and build more schools.

November 1998

17. In an information paper prepared for the meeting of the Panel on Security on 5 November 1998, the Security Bureau stated that "our estimate of the backlog of eligible children (aged under 20) as at 1 July 1997 was 66000, based on the best available information. We have no statistics on how many adult children are in the Mainland. The specified sub-quota for eligible children has been increased from 45 to 60 within the daily 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 2? years to clear the bulk of the non-adult eligible children".

February 1999

18. At the special House Committee meeting held on 5 February 1999, S for S explained that when the C of E Scheme was introduced in July 1997, plans had been drawn up for the provision of services to cater for the phased intake of about 66 000 eligible persons under the age of 20 who were known to be in the Mainland as at July 1997.

March 1999

19. At the special House Committee meeting held on 2 March 1999, S for S explained that the Administration did not have an estimate of the number of Mainland children whose resident parents in Hong Kong only acquired permanent resident status after their birth, nor did it have any data on the number of Mainland children born out of wedlock to Hong Kong permanent residents. It was therefore not possible to formulate any contingency plans to cater for the intake of these two categories of persons.

20. In an information paper entitled "Provision of education for newly arrived children " prepared by the ED for discussion at the meeting of the Panel on Education on 30 March 1999, the Panel was informed that "of the estimated 66000 eligible children, about 46 000 have already come to Hong Kong. We have put aside adequate resources in providing the necessary education services for these eligible children (including the 20 000 who have yet to arrive). To meet the demand from the 66000 children, we have planned to construct 32 schools (13 primary schools and 19 secondary schools) at a total cost of about $2,600 million. So far, 7 primary schools have been completed and commenced operation, the other schools are scheduled for completion in the coming few years".


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Legislative Council Secretariat
4 May 1999

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