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Following is a question by the Hon Margaret Ng and a reply by the Secretary for Security, Mrs Regina Ip, in the Legislative Council today (December 19):

Question:

At present, primary and secondary schools are required to obtain the approval of the Education Department (ED) before they can admit children who have been granted temporary stay in Hong Kong by virtue of Recognizance Forms issued by the Immigration Department (ID). Moreover, the ED will consult the Director of Immigration (the Director) before making a decision in this respect, and will grant approval only when the Director raises no objection. It has been reported that almost a hundred applications for admission of such children to school have been rejected. In this connection, will the Government inform this Council:

(a) of the numbers of such applications for admission to school received by the ED in each of the past four school years and so far in the current school year and, among these applications, the respective numbers of those which have been approved and rejected;

(b) whether it has tightened up the criteria for vetting and approving such applications in the wake of its request for interpretation of the relevant provisions of the Basic Law by the Standing Committee of the National People's Congress; if so, of the details; if not, the reasons for the Administration approving many such applications in the past but rejected lots of applications now; and

(c) of the legal provisions on which the Administration bases its requirement that approval of such applications for admission to school is subject to the prerequisite that "the Director of Immigration raises no objection", as well as the legal provisions on which the Director of Immigration bases his decision to turn down such applications; and whether it has assessed if the rejection of such applications contravenes Article 28 of the Convention on the Rights of the Child which provides for the right of the child to education?

Reply:

President,

To answer the Question, it is necessary for me to explain the background underlying our policy and laws that are relevant to the question of whether children who are illegal immigrants or overstayers enjoy the rights to attend schools in Hong Kong.

Immigration control is aimed at persons who, whilst they do not have the right to enter or remain in Hong Kong, seek to enter or remain for purposes such as visiting relatives, sightseeing, business, employment or study. An essential element for maintaining the integrity of our immigration control is that after entering Hong Kong for one purpose, such persons cannot change that purpose at will. Visitors who entered Hong Kong for sightseeing or to visit their relatives shall not therefore work or become students at our schools during their stay without the requisite permission from our immigration authorities.

The control does not deny a child his right to education. That right does not, however, mean that a child has the right to enter any territory he chooses for the purposes of study. For example, Hong Kong residents who want to study overseas all have to apply for the appropriate student visas from the immigration authorities of the countries of their choice.

Thus, under our laws visitors are prohibited from working or becoming students at our schools during their stay in Hong Kong. This condition of stay also applies to overstayers, viz. those who stay in Hong Kong beyond the stipulated limit of lawful stay. Contravention of a condition of stay, as well as aiding and abetting a contravention, are offences, for which the maximum penalty is a fine of up to $50 000 and imprisonment for up to two years. The relevant legal provisions include section 41 of the Immigration Ordinance, regulation 2 of the Immigration Regulations and section 89 of the Criminal Procedure Ordinance.

Much has been made of the significance of the form of recognizance held by the Mainland children in question. The purpose of a recognizance is to allow the person entering into it to be released pending further removal proceedings. It does not give the person any additional legal rights such as the right to work in Hong Kong or to become a student at our schools. An overstayer who holds a form of recognizance remains an overstayer under our laws.

Against the above policy and legal background, the Government has for a long time been exercising flexibility, on a strictly case by case basis, in handling applications for admission to our schools by children on recognizance where humanitarian or compassionate grounds exist, such as where it is foreseen that the removal of the child is unlikely to take place for an extended period of time.

Under the existing arrangement which dates back to the mid-1990s, where an application for admission to our schools is put forward by a child on recognizance, the Director of Immigration will give his advice to the Director of Education who will, having regard to such advice and any other relevant considerations, consider whether arrangements can be made to admit the applicant to schools in Hong Kong strictly on a case by case basis. In cases where the child concerned is so admitted, no question of prosecutions for either the offence of breaching the condition of stay prohibiting him from becoming a student at our schools, or of aiding and abetting a breach of that condition of stay, would arise.

The relevant laws, policy and arrangements enable us to comply with applicable international conventions, including the United Nations Convention on the Rights of the Child. The complexity of the issues involved does not allow me to set out the full details here. Suffice it to say that the right to education under the international conventions applicable to Hong Kong is not an absolute right and can, for example, be subject to statutory limitations including the conditions of stay in our immigration laws.

As regards the number of applications received in each of the past four school years and the current school year, the figures are as follows:

School Year   Applications received   Arrangement for


                                      Admission Made


___________   _____________________   _______________




1997/98              655                         487


1998/99              299                         284


1999/2000            354                         206


2000/01              238                          43


___________   _____________________   _______________


Total               1546                        1020




Sep-Nov 2001         104                          24

It should be noted that there are in Hong Kong 187 children on recognizance whose applications for admission to our schools have not been supported. Since the beginning of December 2001, another 14 applications have been filed with the Government. However, the allegation that many of the 187 children have been denied formal schooling for as long as five years is unfounded. In fact, 183, or 98 per cent, have only applied to attend schools since March 2000. More specifically, 135, or 72 per cent, have made their applications since the beginning of this year, and among them 84 have only done so since August 2001.

It is also untrue that they are all involved in protracted right of abode litigation. In fact, only four are parties to the litigation relating to the Concession Scheme which started in May 2000 and is currently awaiting judgment of the Court of Final Appeal. Another 56 claimants have had their applications for leave to bring judicial review rejected by the Court of First Instance, and are now appealing to the Court of Appeal against the decision to refuse leave. The remaining 127 children are not involved in any ongoing litigation.

Whilst the Director of Immigration has not supported most of the applications submitted since March 2000, the Director has not changed or tightened his considerations. When considering whether there are humanitarian or compassionate grounds for supporting a particular application, a consideration of the Director of Immigration has always been whether it is foreseen that the removal of the applicant is unlikely to take place for an extended period of time, having regard to all relevant circumstances including the prevailing state of applicable laws. This has been the practice of the Director of Immigration both before and after March 2000.

Given the passage of time since some of the cases were first examined, our Director of Immigration would now proceed to review each of the 187 cases in which the application of a child on recognizance for admission into schools has not been supported. Pursuant to the existing arrangement, the Director of Immigration will give his advice to the Director of Education who will, having regard to the advice and to any other relevant considerations, consider whether arrangements can be made to admit an applicant to schools in Hong Kong strictly on a case by case basis.

It is too early to tell how long that review will take. Nor can we prejudge its outcome. It must however be stressed that if the review leads to arrangements being made for an applicant's admission to schools, such arrangements should not be construed as implying that permission has been granted by the Director of Immigration for the applicant to remain in Hong Kong for education, or an undertaking by the Director of Immigration that removal proceedings would not be instituted or continued.

End/Wednesday, December 19, 2001

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