LC: Speech by Secretary for Security

************************************

Following is the speech by the Secretary for Security in moving the motion on the resolution for amending Schedule 1 to the Immigration Ordinance in the Legislative Council today (Friday) :

President,

I move the motion standing in my name on the Order Paper.

Let me first explain the purpose of amending the Immigration Ordinance.

On 26 June, the Standing Committee of the National People's Congress (NPCSC) gave an interpretation of the legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law (BL). According to NPCSC interpretation:

(a) the phrase "people from other parts of China" under BL 22(4) means people from various provinces, autonomous regions and municipalities directly under the Central Government, including persons of Chinese nationality born in the Mainland of Hong Kong permanent residents; and that they need to apply for the necessary approval from the relevant Mainland authorities for entry into Hong Kong for whatever purposes; and

(b) under BL 24(2)(3), persons of Chinese nationality born outside Hong Kong of permanent residents are eligible for right of abode (ROA) only if, at the time of their birth, at least one of their parents belong to the categories listed in BL 24(2)(1) or 24(2)(2).

The NPCSC also stated that the interpretation will not, however, affect the ROA which has been acquired under the judgment of the Court of Final Appeal (CFA) on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings.

The NPCSC interpretation has the same legal force and validity as the BL. The BL is both a national law and a law of the HKSAR. The NPCSC interpretation has thus already become part of our domestic law. No legislative amendments are therefore necessary to give effect to the NPCSC interpretation. However, the CFA in its judgment delivered on 29 January has struck out certain parts of the Immigration Ordinance, its Schedule 1, Form 12 in the Immigration Regulations, and the gazette notice issued by the Director of Immigration for application procedures for Certificate of Entitlement (C of E). We consider it desirable to amend these instruments in the light of the CFA judgment and the NPCSC interpretation to remove any doubt about their text. This is the main purpose of the Resolution.

I would also take the opportunity to introduce a technical amendment to correct an inadvertent error in Schedule 1 to the Immigration Ordinance. As the CFA pointed out in its judgment, there is an error in paragraph 2(c) of Schedule 1 in referring to the term "right of abode", given that the term was only introduced into the Immigration Ordinance on 1 July 1987. Reference to the term "right of abode" in this sub-paragraph therefore produced the inadvertent effect that persons born before 1 July 1987 would not be eligible for ROA. The same error was in fact made in paragraph 2(a) of the Schedule. We agree with the CFA and wish to rectify this drafting error by replacing the term "right of abode" with a more accurate formulation to ensure that persons born before 1 July 1987 are able to acquire ROA.

Against this background, we have drafted the Resolution to achieve the following effect:

(a) to implement the CFA decision in respect of persons born out of wedlock;

(b) to remove any doubt as to the text of Schedule 1 to the Immigration Ordinance in respect of the categories of persons who have ROA, following the CFA judgment and the NPCSC interpretation; and

(c) to correct the inadvertent error relating to the use of the term 'right of abode' in Schedule 1 as I have mentioned earlier.

After I had submitted the Resolution to this Council on 28 June, a Sub-committee was immediately set up by it to consider the Resolution. And within a short period of two weeks, four meetings were convened. I wish to take the opportunity to thank the Chairman, Mr Ambrose LAU Hon-chuen, and members of the Sub-committee for their serious examination of the Resolution. They had suggested a number of constructive amendments. We are happy to take on board some of them. In this regard, the Secretary for Justice will later move that some technical amendments be made to the Resolution, so that the relevant provisions in the amended Schedule 1 will be more clearly defined. I hope that Members will support my resolution as well as the amendments moved later by the Secretary for Justice.

I would like to take the opportunity to respond to some of the questions raised by the Sub-committee when examining the Resolution.

First, I would respond to a question from some members: Are the requirements specified in Schedule 1 and the amendments proposed by us inconsistent with the BL?

In examining the Resolution, the Sub-committee spent a lot of time discussing whether the provisions concerning the category of persons eligible for ROA and the proposed amendments were inconsistent with the BL. Some members pointed out that BL 24(2)(1) only specifies that permanent residents of the HKSAR include "Chinese citizens born in Hong Kong before or after the establishment of the HKSAR", and that no mention is made of "if his father or mother was settled or had the right of abode in Hong Kong at the time of birth of the person or at any later time". Members queried whether the inclusion of these wordings in the text of the Immigration Ordinance, i.e. the LegCo adding a footnote to the original provision of BL, or as what senior counsel Mr. Philip Dykes described , a "legislative gloss", is consistent with the BL and what the legal basis for that is.

Of course, what is affected is not only para 2(a) of Schedule 1. Similar footnotes have been added to some other provisions in para 2 of Schedule 1. Para 2(c) of Schedule 1 which deals with the circumstances under which children born outside Hong Kong of Hong Kong residents are eligible for ROA has been the bone of contention in many legal cases since our reunification with the Mainland. I believe Honourable Members are fully aware of the details and I do not think I need to repeat the whole story here. But I would like to point out that the above mentioned footnote was examined in-depth by a number of Members in their capacity as Members of then Legislative Council and was supported in a debate in the former Legislative Council. This is what happened then: after a spokesman of the Hong Kong and Macao Affairs Office of the State Council had made a detailed statement concerning the policy on the nationality and ROA of Hong Kong residents in April 1997, the then Director of Immigration gave a briefing to the Legislative Council Panel on Security on 14 April 1997, stating that both the Chinese and British sides had reached a major consensus on the interpretation of BL 24 and the arrangements for its implementation. This consensus included the following:

(A) Under BL 24(2)(1), Chinese citizens born in Hong Kong before or after the establishment of the HKSAR will qualify for ROA. This means that in order to qualify for this right, those Chinese citizens should be born in Hong Kong to parents (both or either one of them) who had the ROA or unconditional stay in Hong Kong at the time of their birth or any time thereafter.

(B) Under BL 24(2)(3), persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2) will qualify for ROA. This means Chinese citizens born outside to Hong Kong parents (both or either one of them) who were Chinese citizens and had the ROA in Hong Kong at the time of their birth.

One month later, that is, on 14 May, the Hon Margaret NG moved a motion in the then Legislative Council, calling for the submission of a bill on the ROA issue for passage of the relevant legislation by the Legislative Council before 1 July 1997. At that time, Ms NG said,

"We are told that China and Britain have reached a consensus on how Article 24 is to be implemented after 1 July. The areas of consensus have been published by each side on its own. There are only a few grey areas where no agreements have been reached, and we have been told precisely what they are.

That so much consensus has been reached is of course encouraging. But policy, even widely announced, is not enough. The matter needs legislation because only the law can establish rights; because only the law is binding on the Government. Only the law can give real protection by giving the individual a clear basis for his claim."

The above statement clearly demonstrated Ms NG's support for the consensus reached between the two countries on the interpretation of BL 24(2) and early enactment of domestic legislation to implement the principles provided for in the BL. Her view was shared by many other Members then, including Ms Christine LOH, who stated that,

"I will support such a Bill so far as it reflects the consensus reached in the Joint Liasion Group. The Honourable Miss Margaret Ng cogently explains the legal basis of the Government's responsibility to put such a Bill forward. There is also overwhelming public demand to fix the right of abode in law before the handover. That demand reflects the difficult situation in which Hong Kong people are being placed. No matter how much the Government tells us otherwise, and I am sure that they do know better, the right of abode will not be certain or secure until it is established by law."

In supporting the Hon Margaret NG's motion, the Hon CHENG Ka-fu stated that,

"...Article 24 of the Basic Law has only provided for principles, the implementation of which must rely on other detailed legislation, so that there will be law and regulations for members of the public to follow and observe. Hong Kong has always claimed that one of her advantages is the possession of a sound legal system, but how are we going to convince others that there is rule of law in Hong Kong if we cannot even work out a clear definition for ROA (translation)? "

Eventually the Hon NG's motion was carried with 23 votes. Members who supported the motion then included the very Members who are now opposed to seeking NPCSC interpretation of the BL, namely the Hon Martin LEE, the Hon SZETO Wah, the Hon CHEUNG Man-kwong, the Hon Michael HO, the Hon Emily LAU, the Hon LEE Wing-tat, the Hon Fred LI, the Hon James TO, the Hon YEUNG Sum, the Hon Christine LOH, the Hon LEE Cheuk-yan, the Hon Andrew CHENG, the Hon Albert HO, the Hon LAU Chin-shek, the Hon LAW Chi-kwong, the Hon LEUNG Yiu-chung and the Hon Margaret NG. This past debate of the motion shows that many Members did not then doubt the consensus reached by the British and Chinese sides regarding the interpretation of BL 24(2), nor did they query the "footnotes" to be added in our domestic legislation for the purpose of implementing the principles stated in BL 24(2), which was part of the consensus. In view of this, for those Members who are in doubt of the relevant provisions in Schedule 1 to the Immigration Ordinance and our proposed amendments, and who wonder whether the "footnotes" are in line with the BL, do they really have any objective and rational justifications?

More than two years have since passed and one thing which hasn't changed is that the ROA issue is still causing considerable disquiet to our community. Litigation continues to arise and the number of Mainland visitors or illegal immigrants claiming ROA for settlement in Hong Kong has been increasing. The number of people who have approached the Immigration Department to claim their ROA since the NPCSC interpretation on 26 June has surged to nearly 10 000, including at least 400 illegal immigrants and over 3 000 overstayers. Among these claimants, there are over 4 000 whose status cannot be verified, i.e. we do not know whether they are still in the Mainland and that their relatives in Hong Kong are claiming ROA on their behalf, or whether they have already entered Hong Kong illegally. We are most concerned about the rising percentage of illegal immigrants, for it suggests that the lack of clarity in our local legislation on ROA has attracted more and more illegal immigrants from the Mainland to claim the ROA, thus exerting increasing pressure on our immigration control. The increase in the number of overstayers also poses difficulties to future repatriation. In my opinion, the present situation differs from that of two years ago when this Council debated the same issue, in that the need to pass legislation to clarify the ROA entitlement is now more urgent than ever, in order to allay the concern in the community. Therefore I hope that all of you, Honourable Members, including those who have indicated their objection to today's Resolution, will support today's motion in the same spirit as you supported early enactment of ROA legislation two years ago.

Now I would like to raise a question: Are the proposed amendments to Paragraph 2(a) of Schedule 1 against the opinions of the Preparatory Committee on the implementation of BL 24(2) given in 1996?

As pointed out by members of the Sub-committee, the proposed amendments to para 2(a) of Schedule 1 provide for the addition of the date 1 July 1987 as the dividing line whereby a Chinese citizen born in Hong Kong before that date is eligible for ROA while that those born in Hong Kong after that date will be eligible only if either of his parents has been settled or had ROA in Hong Kong. These requirements are not found in the Opinions of the Preparatory Committee(PC) of the HKSAR of the NPC on the implementation of BL 24(2) passed on 10 August 1996. Hence, some Honourable Members doubt whether the proposed amendment is consistent with the Opinions of the PC.

As I have explained earlier, we need to amend para 2(c) of Schedule 1 because the term "right of abode" did not exist in Hong Kong laws before 1 July 1987. We also have to amend para 2(a) of Schedule 1 for the same reason by introducing an appropriate term to ensure that persons born before 1 July 1987 are also eligible for ROA. In considering the wording, we are mindful that before the British Nationality Act 1981 came into effect on 1 January 1983, the Immigration Ordinance of Hong Kong was less restrictive in that a Chinese citizen born in Hong Kong was eligible for the status of "Hong Kong belonger" and had the right to land in Hong Kong. However, after 1 January 1983, he was eligible for such status and right only if either of his parents was a British Dependent Territories citizen or was settled in Hong Kong. We noted that whenever there was an amendment to the legislation concerning the status of "Hong Kong belonger" and the right to land in Hong Kong, the normal practice of the Hong Kong Government before the establishment of the Hong Kong Special Administrative Region was to preserve the rights conferred on individuals before the commencement of the legislative amendments. The Chinese and British governments were fully aware of this policy and so were the drafters of the Basic Law. Therefore, in drafting our amendments to para 2(a) of Schedule 1, we decided to preserve the rights conferred on people before changes were made to the law. Besides, since the term "right of abode" was introduced to the Immigration Ordinance on 1 July 1987, it would be appropriate to use this date as the dividing line.

Members of the Sub-committee generally agree that this way of handling is more generous. As to whether our proposed amendments are consistent with the Opinions of the PC, I must point out that although the wordings we propose are not the same as those in the Opinions, they are consistent with the true legislative intent of the BL. As Professor Albert CHEN has told the Sub-committee, while the Opinions have a definite legal status, they are not equivalent to law and therefore it is unreasonable to expect the wordings of the Opinions to be as precise as that in legislation. Although the wordings of our proposed amendments are different from that in the Opinions, it should not be regarded as inconsistent with the Opinions or the true legislative intent of the BL.

Does the Government intend to win cases by such move? This question was raised at the Sub-Committee. I wish to point out that under the independent judicial system in Hong Kong, all litigation is subject to the courts' adjudication but judges do need clearly defined legislation to help them pass judgments. According to newspaper reports, Chief Judge of the High Court Mr Justice Patrick CHAN, when determining a Mainland woman's application for leave to appeal out of time, made the following remark, "The recent ROA issue has caused a lot of problems and things are changing rapidly. At a time when the Legislative Council and the Security Bureau are still considering the new arrangements following the CFA judgment and the NPCSC interpretation, not even I myself am certain about the new arrangements and the legal basis. I cannot therefore judge immediately whether the application for leave to appeal out of time is justified (translation)." This shows that in the absence of comprehensive legislation for the court's reference, given that some parts of our domestic law were struck out by the CFA, much confusion has been caused to our judicial work. Hence there is a pressing need for the passage of my Resolution to provide for full and clear definitions of entitlement to ROA in Schedule 1 to Immigration Ordinance.

Lastly, I wish to reaffirm that in passing my Resolution, there will be the following advantages:

(a) Schedule 1 to the Immigration Ordinance will provide for a clear and comprehensive statement of eligibility for ROA;

(b) Once the Resolution has been passed, the Government will be able to gazette as soon as possible the C of E application procedure agreed between the Director of Immigration and the Bureau of Exit-entry Administration (BEEA) of the Ministry of Public Security, so that the Immigration Department may resume receiving C of E applications from residents in the Mainland. Members are probably aware that the Department has been unable to promulgate a comprehensive set of application procedures for those eligible since 29 January. Now that the application procedure has been agreed upon, Members' early endorsement of the Resolution will enable ROA claimants to submit their applications as soon as possible under the specified procedure; and

Although it is anticipated that legal proceedings in respect of the ROA issue will persist for a while, the Resolution, if passed, will signify a great step forward in our efforts to reduce the prevailing confusion and serve to restore the well tried and tested system governing the orderly entry of Mainlanders into Hong Kong. I would therefore earnestly ask for your support. As regards the necessary amendments to the Immigration Ordinance and the Immigration Regulations, we will submit them to Members for consideration as soon as the legislative session resumes in October.

In examining the Resolution by the Sub-committee, some Members also queried the legal validity of the notice on C of E application procedures. What I want to point out is that judges who tried the ROA cases had never held the notice to be unlawful. They were only querying the status of the notice given that it has legislative effect, but is not in subsidiary legislation. This aside, I want to stress that the Government has never refused to provide Members with the draft notice for their information. In fact, we already submitted to the Sub-committee a paper on the C of E application procedures last week on 5 July. This Monday, once the Immigration Department and the BEEA of the Ministry of Public Security reached an agreement on the application procedure, the draft notice was provided to the Panel on Security at its request. On 13 July, we attended the Panel on Security meeting to answer Members' questions. Questions raised by Members and Legal Advisor of the Legislative Council concerning the notice have also been given serious consideration.

Madam President, I hereby urge that the Council amend Schedule 1 to the Immigration Ordinance by Resolution under section 59A of the Immigration Ordinance.

Thank you, Madam President.

End/Friday, July 16, 1999

NNNN