LCQ18: Comprehensive review of strategy of handling non-refoulement claims

     Following is a question by the Hon Leung Che-cheung and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (April 13):


     It has been learnt that the number of people who lodged torture claims/non-refoulement claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) immediately after entering Hong Kong unlawfully has been on the rise recently.  In this connection, will the Government inform this Council:

(1) of the respective numbers of illegal immigrants (IIs) intercepted by the Police in Hong Kong waters and onshore in each of the past 12 months (with a breakdown of their places of origin); whether it knows, among such IIs, the number and percentage of those who entered Hong Kong unlawfully by boat departing from the Mainland, as well as their embarkation locations;

(2) of the major sea routes currently taken by non-ethnic Chinese people when they entered Hong Kong unlawfully, the parts of Hong Kong waters that they pass through en route, and their disembarkation locations;

(3) of a breakdown, by place of origin, of the number of the people who lodged torture claims/non-refoulement claims (claimants) in the past 12 months; whether the authorities have analysed the means through which the claimants entered Hong Kong, and taken measures and actions to intercept them; if they have, of the details;

(4) whether the authorities have made reference to the experience of handling Vietnamese boat people and refugees years ago, and considered setting up open or closed reception centres for such claimants; if not, of the reasons for that; and

(5) whether the authorities have studied if there is any precedent of withdrawal from the Convention; if they have, of the details and outcome of such study?



     Foreigners who smuggled themselves into Hong Kong, and visitors who overstayed their limit of stay allowed by the Immigration Department (ImmD) or who were refused entry by ImmD upon arrival in Hong Kong are liable to be removed from Hong Kong in accordance with the Immigration Ordinance (Cap. 115).  To safeguard immigration control and for public interest, they should be removed as soon as practicable.

     However, pursuant to multiple court rulings since 2004, if foreigners claim that they would face a risk of being subjected to torture, or cruel, inhuman or degrading treatment or punishment, or persecution in the country of origin, ImmD cannot remove them there before their claim is determined under procedures that meet with "high standards of fairness".

     My replies to the various parts of the Hon Leung's question are as follows.

(a) and (b) According to information available to the Police, non-ethnic Chinese illegal immigrants (NECIIs) usually entered the Mainland by land or by air.  They would then smuggle into Hong Kong by sea or by land from Guangdong or Shenzhen.  At sea, NECIIs mainly travelled through the north-eastern waters of Hong Kong and landed near Sha Tau Kok or Dapeng Bay areas, or through the western waters of Hong Kong and landed near Deep Bay or the Lantau Island.

     A breakdown by nationality of NECIIs in 2015 is as follows:

Country          Number
--------        --------
Vietnam           2 278
Pakistan           686
Bangladesh         414
India              380
Nepal              31
Others             30
Total             3 819

     Based on information available to the Police and ImmD, about 60% of NECIIs smuggled into Hong Kong by sea, and 40% by land.

(c) The Unified Screening Mechanism (USM) was implemented since March 2014 to screen non-refoulement claims on all applicable grounds in one go.  At end March 2016, there were 11 201 claimants pending screening.  Claimants mainly came from south or southeast Asian countries, with Vietnam (22%), India (19%), Pakistan (18%), Bangladesh (12%) and Indonesia (10%) being the top five countries of origin.  According to immigration records, 51% of claimants smuggled into Hong Kong, and 47% arrived Hong Kong as visitors but were refused permission to land or subsequently overstayed.

     As mentioned above, 51% of non-refoulement claimants are NECIIs who smuggled into Hong Kong.  Interception at the source is a key linchpin of the Government's comprehensive review of the strategy of handling non-refoulement claims.  The Police have formed a joint investigation team with other law enforcement agencies (LEAs), including ImmD and the Customs and Excise Department (C&ED), and have taken a series of actions during the last few months to intercept illegal immigrants (IIs) on land and at sea and to combat human trafficking syndicates.

     At sea, the Police deployed additional speedboats to step up patrol at blackspots such as Sha Tau Kok, Dapeng Bay, Deep Bay, and the Lantau waters.  Also, in view of the tendency of human smuggling syndicates to attempt to enter Hong Kong waters from midnight to early morning, the Police and C&ED deployed ships equipped with sophisticated radar systems, including marine patrol launches, sector patrol launches, high speed pursuit crafts, etc. to enhance capability to detect and intercept IIs before they enter Hong Kong waters.  Since early 2016, the Police also conducted over 100 joint operations with the Government Flying Service where marine patrol launches swept the eastern and western waters of Hong Kong with the support of helicopters.

     On land, as many NECIIs claimed to have smuggled into Hong Kong inside or under lorry trucks, the Police stepped up patrol at all boundary control points (BCPs).  The Police also took joint actions with ImmD and C&ED to conduct more spot checks at BCPs on cross-boundary lorry trucks and deployed mobile X-ray vehicle scanning systems and carbon dioxide detectors to scan the lorry trucks.  At the Lok Ma Chau Control Point, which has the highest traffic flow of lorry trucks, we are going to install more closed-circuit television and additional lighting at the vehicle holding area, and motion sensors on the surrounding fences to prevent IIs from escaping from there before the lorry trucks are subject to immigration examination.  The Police and C&ED have also enhanced publicity with cross-boundary lorry truck drivers to remind them of the serious legal consequences of assisting IIs to smuggle into Hong Kong, and that they should check their lorry truck in detail before entering Hong Kong from the Mainland.

     Separately, the Police also stepped up patrol at the frontier area to prevent IIs from seeking to climb over the fences and enter Hong Kong on foot.

     LEAs of the Mainland also rendered active assistance to the HKSAR Government to intercept NECIIs in the Mainland before they enter Hong Kong.  The Ministry of Public Security has commenced dedicated operations (from February 2016 to end July 2017) and mobilised its Border Control Department and immigration authorities in Guangdong, Guangxi, Yunnan, and Xinjiang to work jointly with the Hong Kong Police to combat smuggling activities at the Hong Kong-Guangdong boundary by stepping up cooperation on interception, investigation, intelligence exchange and enforcement, in order to combat foreigners smuggling into Hong Kong via the Mainland.

     The actions above have produced initial results.  From March 18 to 20, 2016, the Border Control Department of Guangdong and the Hong Kong Police took parallel actions at Shenzhen, Huichou, and Hong Kong to bust a group smuggling case, arresting 30 members of a human smuggling syndicate (18 in Guangdong and 12 in Hong Kong) and 121 South-Asian IIs (89 in Guangdong and 32 in Hong Kong).  Four ships and a vehicle were seized and the syndicate was neutralised.  At the same time, ImmD also raided multiple locations in Hong Kong and arrested 18 illegal workers and 11 employers suspected to be employing persons who are not lawfully employable.

     In the two months since the dedicated operation commenced, the Border Control Departments at Guangdong, Guangxi, and Yunnan have arrested a total of 2 943 NECIIs and 142 members of human smuggling syndicates.  In February and March this year, the number of NECIIs was 292 and 272, representing a respective decrease of 30% and 35% over January.  LEAs of the Mainland and Hong Kong will continue to step up enforcement actions to stem the influx of NECIIs.

     At the same time, the Government proposes to amend the Immigration (Unauthorized Entrants) Order (Cap. 115D) (the Order) to expand the definition of "unauthorized entrants" to include major source countries where NECIIs originate (in addition to Vietnam), i.e. Pakistan, Bangladesh, India, Nepal, Sri Lanka, Somalia, Afghanistan, and Nigeria, so as to immediately enhance the penalties against smuggling of IIs from these countries.

     By stepping up enforcement and amending the Order to enhance penalties at the same time, we aim to achieve a sufficient deterrent effect against human smuggling syndicates to reduce smuggling of NECIIs into Hong Kong.

     As regards those visitors who lodge non-refoulement claims after overstaying or being refused permission to land (comprising 47% of all claimants), the majority of them are visitors who entered Hong Kong under visa-free arrangements.  We are actively developing the details for introducing pre-arrival registration (PAR) to prevent those visitors with a high risk of lodging non-refoulement claims after overstaying or being refused permission to land from boarding their flight in the first place.  We aim to commence PAR within this year.  The Government will also review visa / visa-free policies having regard to ongoing circumstances.

(d) As regards suggestions that we should draw reference to the experience of handling the Vietnamese boat people crisis in the 1980s and re-introduce closed camps in Hong Kong, the power vested in the Government under the Immigration Ordinance to detain Vietnamese boat people is applicable only to those Vietnamese boat people who arrived Hong Kong before January 1998.  Since the 1980-90s, the Court has made a number of rulings in relation to the detention of IIs.  In particular, the Court of Final Appeal ruled in Ghulam Rbani v the Director of Immigration that ImmD's power to detain illegal immigrants is subject to the common law Hardial Singh principles, i.e. if ImmD cannot complete the removal procedures (including the screening procedures for non-refoulement claims) to remove him within a reasonable time, then ImmD cannot continue to detain him.  The suggestion also gives rise to other challenges from land and manpower resources perspectives.  That being said, we have commenced research into proposals to empower ImmD to detain more claimants that would conform to legal and operational requirements, so as to deter them from coming to Hong Kong and delaying the removal / screening procedures.

(e) The HKSAR Government introduced the USM for the purposes of complying with the Convention against Torture (the Convention), the Hong Kong Bill of Rights Ordinance (Cap. 383), the Immigration Ordinance (Cap. 115), and the rulings of the Court of Final Appeal.  Even if a reservation is made to Article 3 of the Convention or the Convention does not apply to HKSAR, this does not absolve the HKSAR Government from having to screen non-refoulement claims pursuant to the requirements of our laws and court rulings.  As such, for the purpose of our comprehensive review, we have no plans to consider such measures as requesting the Central People's Government to declare that the Convention does not apply to the HKSAR or to make a reservation to certain provisions of the Convention.

Ends/Wednesday, April 13, 2016
Issued at HKT 16:20