***********************************************
Following is a question by Dr the Hon Kenneth Chan and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (January 27):
Question:
Article 24(2)(3) of the Basic Law stipulates that HKPRs include persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2) in Article 24(2). Recently, a Hong Kong permanent resident (HKPR) residing in a member state of the European Union (EU) sought my assistance, claiming that when she brought her first child born in that EU country back to Hong Kong in 2013, the Immigration Department (ImmD) approved her application for the issuance of a Hong Kong Identity Card (HKIC) to that child but, when she brought her second child born in that EU country back to Hong Kong last year, the ImmD refused to issue an HKIC to that child. The ImmD indicated that the assistance seeker had settled abroad and, by virtue of Article 5 of the Nationality Law of the People's Republic of China (the Nationality Law), her children should not have Chinese nationality. The assistance seeker has indicated that as she has not yet acquired citizenship or permanent resident status of the country where she is residing at present, she cannot understand the justifications for the ImmD's decision. Regarding the issuance of HKICs to children of HKPRs born overseas, will the Government inform this Council:
(1) of the existing channels through which HKPRs may apply for HKICs for their children born overseas, and the details of the relevant application procedures;
(2) of the number of applications for HKICs received by the ImmD in each of the past three years which were made by HKPRs for their children born overseas and, among such applications, the number of those rejected because the applicants should not have Chinese nationality by virtue of Article 5 of the Nationality Law;
(3) whether the authorities have formulated guidelines on the interpretation and enforcement of Article 5 of the Nationality Law in Hong Kong; if they have, whether they will make public the guidelines; if they will not, of the reasons for that; if they have not formulated such guidelines, whether the authorities will consider formulating and making public the relevant guidelines shortly; if they will, of the details; if not, the reasons for that;
(4) given that the immigration policies adopted by foreign countries may change from time to time, whether the authorities will, in the light of such changes, regularly review and amend the policy on the enforcement of Article 5 of the Nationality Law in Hong Kong; if they will, of the details; if not, the reasons for that; and
(5) whether the authorities will step up efforts in publicising in Hong Kong and overseas the policy on the enforcement of Article 5 of the Nationality Law in Hong Kong to enable HKPRs to understand the procedures for applying for the issuance of HKICs to their children born overseas, as well as the criteria for vetting and approving such applications; if they will, of the details; if not, the reasons for that?
Reply:
President,
According to Article 24 of the Basic Law, permanent residents of the Hong Kong Special Administrative Region (HKSAR) shall have the right of abode in the HKSAR and shall be qualified to obtain, in accordance with the laws of the HKSAR, permanent identity cards (PICs) which state their right of abode. Paragraph 2 of Schedule 1 to the Immigration Ordinance (Cap 115) stipulates that a permanent resident of the HKSAR is:
(a) A Chinese citizen born in Hong Kong before or after the establishment of the HKSAR.
(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR.
(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the HKSAR to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).
(d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence before or after the establishment of the HKSAR.
(e) A person under 21 years of age born in Hong Kong to a parent who is a permanent resident of the HKSAR in category (d) before or after the establishment of the HKSAR if at the time of his birth or at any later time before he attains 21 years of age, one of his parents has the right of abode in Hong Kong.
(f) A person other than those residents in categories (a) to (e), who, before the establishment of the HKSAR, had the right of abode in Hong Kong only.
Schedule 1 to the Immigration Ordinance stipulates that a "Chinese citizen" is a person of Chinese nationality under the Nationality Law of the People's Republic of China, as implemented in the HKSAR pursuant to Article 18 of and Annex III to the Basic Law and interpreted in accordance with the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the HKSAR (the Explanations) adopted at the 19th meeting of the Standing Committee of the National People's Congress at the 8th National People's Congress on May 15, 1996.
According to Article 5 of the Nationality Law of the People's Republic of China, any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality; but a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. In considering whether the parents of the applicants have settled abroad, we will take the actual circumstances of individual case into account and make reference to the relevant court judgements and legal advice. In general, persons who reside ordinarily in a foreign country and are not subject to any condition of stay therein will be treated as having settled abroad.
Our reply to each part of the question raised is as follows:
(1) Any persons, including the children born overseas to Hong Kong permanent residents (HKPRs), may submit an application for Verification of Eligibility for Permanent Identity Card (VEPIC) to the Immigration Department (ImmD) with copies of the supporting documents by post, drop-in boxes or via the Internet, if they have documents to prove that they belong to any categories of permanent resident in the HKSAR specified in Schedule 1 to the Immigration Ordinance. When submitting such application, the applicant must be staying in Hong Kong legally. Once the applicants' eligibility for PICs have been verified, the applicants can apply for Hong Kong PICs (HKPICs) in accordance with the Registration of Persons Ordinance (Cap 177).
For persons residing outside Hong Kong who claim to be permanent residents of the HKSAR under paragraph 2(c) of Schedule 1 to the Immigration Ordinance, they can also apply for the Certificate of Entitlement (COE) of the HKSAR. HKPRs can apply for COEs for their eligible children born overseas. They can apply through the Chinese diplomatic and consular missions (CDCMs) in the country or territory where they reside, or by post to the ImmD directly. If the applications are approved, the children can apply for HKPICs in accordance with the Registration of Persons Ordinance, upon their arrival in Hong Kong on strength of their COEs.
Related application forms and information are available on the ImmD's website: www.immd.gov.hk/eng/services/right-of-abode-in-hksar.html.
(2) The ImmD does not maintain statistics of HKPIC registrations made by children born overseas to HKPRs and the reasons for refusal of registrations.
(3) and (4) In processing VEPIC applications, the ImmD must, in accordance with the relevant laws, consider the individual circumstances of each application and whether the applicant is a Chinese citizen, in order to verify his eligibility for a PIC. As mentioned above, according to Schedule 1 to the Immigration Ordinance, "Chinese citizen" refers to a person of Chinese nationality under the Nationality Law of the People's Republic of China as interpreted in accordance with the Explanations. According to Article 5 of the Nationality Law of the People's Republic of China, any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality; but a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. In considering whether the parents of the applicants have settled abroad, we will take the actual circumstances of individual case into account and make reference to the relevant court judgements and legal advice. In general, persons who reside ordinarily in a foreign country and are not subject to any condition of stay therein will be treated as having settled abroad.
(5) Regarding matters on the right of abode, the ImmD has published a pamphlet on the "Right of Abode in the Hong Kong Special Administrative Region" for distribution to the public and uploaded information related to the Nationality Law of the People's Republic of China to its website as well as that of GovHK. Among other things, information related to the term of "having settled abroad" as specified in Article 5 of the Nationality Law of the People's Republic of China has also been uploaded to the ImmD's website for reference by the public. In addition, the ImmD has, at times, sent officers on overseas visits to explain the various immigration arrangements, including the application and approval criteria for VEPIC by HKPRs migrated abroad and their children born overseas, through seminars arranged by the CDCMs and the Economic and Trade Offices of the HKSAR Government, as well as through the media.
Ends/Wednesday, January 27, 2016
Issued at HKT 16:05
NNNN