Panel on Security of the Legislative Council
Admission of Mainland Children
Who Have the Right of Abode under the Basic Law
for Settlement in Hong Kong

Introduction

This paper reports on the situation as regards the admission of eligible children 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 Article 24(3) of the Basic Law (BL), eligible children are able to come to Hong Kong as a matter of law rather than policy. BL 24(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.

Admission of Eligible Children

3. Our estimate of the backlog of eligible children (aged under 20) as at 1 July 1997 was 66 000 , 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 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 2' years to clear the bulk of the non-adult eligible children. Between 1 July 1997 and the end of September 1998, a total of 32 457 eligible children have already entered Hong Kong under the C of E and OWP Schemes. Of them, 29 920 were aged under 20 and 2 537 aged 20 and above.

Implications of Court Cases

4. 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(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 and the C of E Scheme. 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(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 judgment means that illegitimate children enjoy the same status as children born in wedlock for the purpose of acquisition of right of abode.

5. The children concerned and their parents have lodged an appeal against those parts of the judgment which are unfavourable to them. The Government have lodged an appeal against the judgment on illegitimacy. The Court of Appeal heard the case on 5, 6 and 10 March 1998. The Court made a decision on 2 April 1998has been fixed on 5 March 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 illegitimacy provision was ruled unconstitutional.

6. The Court of Appeal dealt with the legality of the Provisional Legislative Council (PLC) in its subsequent hearing held on 1 May 1998. On 20 May 1998, the Court affirmed that the PLC was lawful.

7. 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 the right of abode (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 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(3), which does not make the same stipulation. The case was heard before the Court of First Instance on 19 January 1998 and the Court handed down a judgment on 26 January 1998 in the applicant*s favour. The serious implication of this judgment, 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 an OWP with a C of E affixed to it before he could be considered as having satisfied the requirements for claiming the ROA in Hong Kong.

8. We have lodged an appeal against this judgment. The Court of Appeal heard the case on 1 May 1998. 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 BL.

9. All parties concerned in the various sets of litigation have lodged appeals against the judgments that are not in their favour. The Court of Final Appeal will hear these appeals in January 1999.

10. 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. While the appeal proceedings continue, our current arrangement is to allow those who are of school age to go to school.

Way Forward

11. 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.

Security Bureau
October 1998