Following is the full text of speech by the Secretary for Security, Mrs Regina Ip, at the luncheon meeting of The Outstanding Young Persons' Association today (July 5):
Right of Abode, Reality and Myths
Mr Lee, Mr Pang, Ladies and Gentlemen,
I am delighted to have the opportunity to address The Outstanding Young Persons' Association again. I recall it was roughly a year ago that I had the pleasure of addressing you on a controversial subject, namely, the Government's policy on sects and cults. Today, I am going to speak on an equally contentious subject, namely, the right of abode saga. By virtue of a series of dramatic developments, this subject has been at the forefront of our collective consciousness since the Re-unification five years ago. It is also a subject which I know particularly well, having dealt with it for almost two decades; first as the immigration desk officer in then Security Branch from 1983-86; then as the team leader of the British side of the Experts Group on Right of Abode under the Sino-British Joint Liaison Group; as Director of Immigration both before and after the Re-unification and now as Secretary for Security. I am sure what I am going to say will not be the last word on the subject. But I would like to share with you my perspectives as a person who has dealt with this subject over a long period and in various capacities.
Over the years, for insisting that children of Hong Kong permanent residents, whose parents did not have the right of abode at the time of their birth, do not have the right of abode in the Hong Kong Special Administrative Region (HKSAR), the Government have been accused by certain sectors of our community of unlawfully depriving such claimants of their rights, or of splitting families, etc. To what extent are these allegations valid? I would like to take the opportunity to address some of the most commonly expressed myths about this subject, and tell you what I believe is the reality.
Myth 1: The HKSAR Government have unfairly deprived right of abode claimants of their right to live in the HKSAR
To examine whether this is true, one needs to consider first whether, under immigration laws in force before the Re-unification, children of permanent residents who did not have the right of abode in Hong Kong at the time of their birth, have the right of abode in Hong Kong. The answer is no. Ever since the British Nationality Act 1981 came into force on January 1, 1983, Hong Kong's immigration laws on the passing on of citizenship by descent had been changed so that children born outside Hong Kong to British Dependent Territories Citizen (Hong Kong) enjoyed the right of abode in Hong Kong if at the time of birth, at least one parent was a British Dependent Territories Citizen (Hong Kong) otherwise than by descent. Thus, when the Chinese and British Governments started negotiating the arrangements governing the future of Hong Kong in the early 1980's, the law governing the transmission of citizenship by descent applying in Hong Kong formed the basis of the provisions eventually appearing in the Sino-British Joint Declaration and subsequently the Basic Law governing the passing on of the right of abode by descent. In other words, the agreement reached by the Chinese and British Governments, as well as the legislative intent of the Basic Law, sought to preserve the status quo governing the transmission of the right of abode in Hong Kong by descent, in recognition of historic realities and in the interest of preserving the prosperity and stability of Hong Kong. It was never intended that children born to every Hong Kong resident outside Hong Kong would enjoy the right of abode.
This arrangement is hardly surprising or unreasonable if one compares it with the immigration laws of other countries. Take, for example, a Hong Kong resident who has emigrated to the US or Canada. After he has acquired US or Canadian citizenship, his children born outside the US or Canada would acquire the citizenship of his adopted country by descent, subject to certain formalities. But any of his children left behind in Hong Kong before he acquired US or Canadian citizenship do not acquire such citizenship automatically. If they could do so, it would mean that the immigration law of a country allows children of their citizens to acquire citizenship before their parents have acquired any strong connection with that country. Not only would this mean that potentially a much larger pool of children would acquire citizenship, it also means passing on citizenship in the absence of any strong connection at the time of birth. I do not know of any country which permits this.
Our law on the passing on the right of abode by descent is no different from that of other countries and territories. I do not think we are being unduly harsh or unfair by requiring that children of Chinese nationality of permanent residents born outside Hong Kong only acquire the right of abode if, at the time of birth, at least one parent has such a right by birth or residence in Hong Kong.
Myth 2: The Basic Law does not spell out such details, and it should be changed to reflect the legislative intent as understood by the HKSAR Government
Article 24(2)(3) of the Basic Law confers the right of abode on 'Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)', i.e. residents who enjoy the right of abode. It is understandable that on one interpretation of this Article, children of Hong Kong permanent residents could have believed that they had the right of abode in Hong Kong, provided that they are Chinese nationals and their parents have the right of abode in Hong Kong, irrespective of whether at least one parent had this right at the time of their birth. Indeed, this is precisely what many Hong Kong parents and their Mainland children believed, as large numbers of Mainland children were taken to the Immigration Department to claim this right as soon as the Immigration Department resumed business after the Re-unification. However, this understanding does not accord with the legislative intent of the relevant provisions of the Basic Law as I just described, and which the HKSAR Government tried to flesh out in the Immigration (Amendment) (No. 3) Ordinance 1997 which was enacted on July 10, 1997.
Should the Basic Law have spelt out all the details regarding the acquisition of the right of abode in Hong Kong as set out in Schedule 1 to the Immigration Ordinance? Should it be changed to put beyond doubt the true legislative intent of the right of abode provisions? I do not believe it ought to be. The Basic Law is a constitutional document. As Chief Justice Marshall of the US had said in McCulloch v. Maryland, 'A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced, from the nature of the objects themselves.' I think this extract from Chief Justice Marshall's famous judgment speaks for itself: constitutional documents cannot be expected to have the degree of detail appropriate to a legal code, and in deducing its meaning regard should be had to the objects, that is to say, the legislative intent. If one subscribes to the view of Justice Marshall, which I certainly do, it would be quite inappropriate to amend the relevant provisions of the Basic Law on right of abode to turn them into something approximating our Immigration Ordinance.
Myth 3: The Central People's Government have interfered in the internal affairs of the HKSAR by requesting the Standing Committee of the National People's Congress to exercise its power of interpretation in regard to Article 24(2)(3) of the Basic Law
I wish to re-iterate for the record that it was the HKSAR Government which requested the Standing Committee of the National People's Congress (NPCSC), through the State Council of the Central People's Government, to exercise its power of interpretation of the Basic Law under Article 158, because, as the Government stated at the time the request was made, the HKSAR Government was faced with an immigration problem of such exceptional proportion that it could not handle it on its own. Our own Court of Final Appeal, in the Lau Kong Yung case, has affirmed that the NPCSC has the power to make an interpretation and that its interpretation of BL 22(4) and BL 24(2)(3) is valid and binding.
Myth 4: The NPCSC's interpretation has undermined the independence of HKSAR's courts
I honestly believe that individuals who make this assertion are not being fair to our judges and our courts, and that such allegation is not borne out by evidence. As the Bureau Secretary presiding over some of the Government departments most vulnerable to judicial reviews and most heavily involved in litigation, I can vouch for the fact that we never expect the courts to act other than independently. That's why the possibility of Government action, or inaction, being overturned upon a judicial review always weighs heavily in our minds. The Government have indeed lost in some important cases, such as the Chong Fung Yuen case last year, concerning the right of abode of children of Chinese nationality born in Hong Kong. We lived up to our promise not to seek an interpretation from the NPCSC lightly. The court also ruled against the Government in certain important public order prosecutions. As always, we respect the court's judgment.
Myth 5: The Government are guilty of splitting families, and have not done enough to help re-unite families
The reality is that owing to our geographical proximity to the Mainland, in the past fifty years, many Mainland residents have migrated to Hong Kong for economic or family reasons. In the course of doing so, many have split their own families. Take my own mother for example, she migrated to Hong Kong in the 1940's. In the '50s, my grandparents followed suit and came to live with us. When my parents were not able to support them, they moved back to live in Guangzhou. I recall when I was a child my mother used to take me to visit our grandparents in the Mainland regularly. With the large numbers of applicants from the Mainland and the practical constraint on the numbers we can take for settlement, inevitably some migrants have to leave behind some children or siblings in the Mainland. It has to be recognized that Mainland residents who left behind their spouse or children did so by their own choice. Given Hong Kong's small geographical size and high population density, we have no choice but to institute a system for controlled and orderly entry for settlement. Humanitarian considerations require that priority be given to long-separated spouses and young, dependent children. By doubling the One Way Permit quota from 75 to 150 in 1995, we have already tried our level best to accommodate those most in need of family reunion. I am pleased to say that today, children over 20 account for almost half of the children admitted on Certificates of Entitlement. The queue for long-separated spouses in Guangdong has been reduced to eight years. Although an eight-year wait is considered long by some human rights group, I know of many Hong Kong residents who accept this reality and are patiently waiting for their Mainland wives to join them.
The fact is, among the 3 500 right of abode seekers still remaining in Hong Kong, only less than eight per cent are below 18 years of age. The rest are grown-ups. Over 40 per cent of them fall within the 31-40 age group. Some of them have their own families in the Mainland. If they are allowed to stay, they will be split from their own spouses and children in the Mainland. Nor are they young dependent children who need to be looked after by their Hong Kong parents. Hong Kong is no different from other countries and territories in giving lower priority to grown-up children seeking entry for settlement.
Myth 6: Hong Kong now being part of China, there should be free movement between Mainland and Hong Kong
There was indeed free movement between Hong Kong and Mainland before 1949. Immigration controls were swiftly brought in after 1949 as pressure of emigration from the Mainland started to mount. Daily One Way Permit quotas for settlement, ranging from 50 to 150, had been introduced since the early '50s. The reality is that we cannot put back the clock. Moreover, Article 22(4) of the Basic Law states clearly that 'For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government, after consulting the government of the Region.' This provision was introduced to safeguard little Hong Kong from being overwhelmed by tens of thousands, or even millions of Mainland residents seeking economic betterment or family reunion in Hong Kong. Long-standing arrangements for controlling immigration from the Mainland have served us well and there is no reason why we should dismantle them.
Moreover, if you look at developments on the Mainland, residents from less developed cities or the countryside who wish to live in developed cities, such as Beijing or Shanghai, need permission from the city of their destination to agree to accept their 'household registration'. Hong Kong is no different from other Chinese cities in requiring those who wish to enter for settlement to seek permission.
Myth 7 : The HKSARG can resolve the residual right of abode problem in a humanitarian manner by exercising its discretion more widely to allow all remaining claimants to stay
The reality is, the Director of Immigration's discretion to allow right of abode claimants to stay cannot be exercised so widely that the exercise of his power amounts to a change of policy. In the interest of fairness and transparency, if a policy is to be changed, it should be prominently announced so that all those who might benefit would be aware. In other words, if an amnesty is granted to the remaining 3 500 claimants in Hong Kong, we would be acting unfairly to people in similar situation who had returned to the Mainland or who are waiting patiently for their turn in the Mainland.
Another suggestion is that we can provide a humanitarian solution by inviting all Mainland children of Hong Kong permanent residents to register with the HKSARG. This, some have argued, would give us a better indication of the actual numbers of Mainland children involved. By augmenting the daily OWP quota of 150 to say 200, we can give every child a chance to settle in Hong Kong. I am afraid I find it very hard to recommend this humanitarian solution to the Chief Executive, given the record high level of unemployment in Hong Kong, and his directive, in his inaugural speech on July 1, that all Bureau Secretaries should consider the implications for employment in formulating policy proposals. Already, within the local community, there is no lack of voices calling for the admission of Mainland residents on the basis of skills rather than purely on the basis of family reunion. The immediate implications for the employment situation and the longer-term implication for the economic restructuring of Hong Kong must be carefully assessed before the current quota for the admission of Mainland residents can be substantially enlarged to facilitate family reunion.
Myth 8 : Mainland children who return have no chance to return to Hong Kong for family reunion
This is patently untrue as some claimants have dropped out of their lawsuits against the Government because they have been issued with One Way Permits. Some removed by force have already returned lawfully as visitors! The fact is, after close consultation with the HKSAR Government, the Mainland authorities have introduced a number of improvement measures to facilitate family reunion. Recent initiatives include:
*accepting applications for One Way Permits from adopted children on the same basis as natural children with effect from October 1, 2001;
*relaxing the age limit of dependent children joining parents in Hong Kong from 14 to below 18 with effect from November 1, 2001; and
*announcing that eligible dependent children should be able to settle in Hong Kong within one year of application.
In our view, although looking after one's parents by way of regular visits may be less than ideal to some claimants, this is how many Hong Kong people who have emigrated have looked after their parents left behind in the Mainland or in Hong Kong. The Mainland and Hong Kong being so close and present-day travel arrangements having improved significantly, there is no reason why family reunion cannot be achieved, albeit not entirely satisfactorily to some, by frequent visits or by parents relocating to the Mainland.
In sum, I wish to place on record that we sincerely believe that the HKSAR Government have gone as far as we can in meeting wishes for family reunion, without overstretching Hong Kong's ability to absorb new immigrants. With hindsight, we believe that the economic difficulties which Hong Kong is facing today, particularly the severe unemployment problem, fully vindicate the decision taken three years ago to seek an interpretation of the relevant provisions of the Basic Law. As I have said time and again, it would be a sad waste of unsuccessful claimants' time and opportunity to continue to remain in Hong Kong illegally, hiding in the houses of friends or relatives, without the prospect of lawful job opportunities or long-term future in Hong Kong. I urge them all to return to their home towns in the Mainland the sooner the better, to rebuild their lives and put an end to the uncertainty hanging over their future. It is about time this controversy impinging on the most fundamental of all rights, and which has raged for years, be laid to rest. I sincerely believe it in everybody's interest for unsuccessful claimants to leave voluntarily, and I hope you can help us by spreading the message.
Thank you very much for listening to this long address.
End/Friday, July 5, 2002