Right of abode issue, Hong Kong
Encyclopedia
The right of abode
in Hong Kong
is the right to legally reside in Hong Kong and was governed by rules both under British and Chinese administration. As the People's Republic of China
stood to resume sovereignty over Hong Kong in 1997, the nationality of Hong Kongers as well as their right of abode in the territory was formalized prior to the handover
. Since Hong Kong has never been an independent country, there is no provision for its own citizenship status. Hong Kong Permanent Resident
is the legal status for those who have the right of abode in Hong Kong. Some rights in Hong Kong (such as the right to vote) are granted to all permanent residents, while others (such as the right to hold a HKSAR passport) are restricted to permanent residents who are also Chinese citizens
.
Hong Kong's close proximity to the People's Republic of China; its colonial relationship with the United Kingdom
; and the subsequent Handover in 1997 generated various right of abode issues as early as the 1950s. Right of abode is still a relevant topic today.
and has since become synonymous with the permanent resident status.
A Hong Kong permanent resident has the right
Before the Handover
in 1997, these rights were the same and linked to having the British Dependent Territories citizenship (by virtue of a connection to Hong Kong) or British National (Overseas)
.
The fundamental rights and duties of residents, which include permanent residents and non-permanent residents, are stated in Chapter III of the Hong Kong Basic Law.
and the Basic Law
defined who may reside in Hong Kong once China assumes sovereignty over Hong Kong.
in addition to Hong Kong.
By 1960s, the United Kingdom passed the Commonwealth Immigrants Act 1962
and Commonwealth Immigrants Act 1968. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonization of the 1960s, the British government tightened immigration control into the United Kingdom and Islands (the UK, the Channel Islands
and the Isle of Man
). As such, British nationals connected to Hong Kong were subjected to immigration control since 1962 and no longer had the right of abode in the United Kingdom.
Until 1997, British nationality related closely with the permanent resident status which guaranteed right of abode. Hong Kong permanent residents had British nationality either by birth, naturalization or by descent. The type of British citizenship connected to Hong Kong eventually evolved to become different from that of the United Kingdom. What has not changed is the definition that a Hong Kong permanent resident has the right of abode in Hong Kong.
. The Hong Kong ID card is proof of legal residency still in use today.
Nevertheless, immigration boom intensified throughout the 50s and 60s with the onset of Cultural Revolution
. The government adopted the Touch Base Policy in 1974 and began repatriating immigrants intercepted at the border. The government abolished the policy by 1980 and began repatriating all illegal immigrants once they are discovered.
Even though the PRC maintains ethnic Chinese of Hong Kong are Chinese nationals, Hong Kong residents were subjected to immigration control when entering China and had no right of abode in the mainland. There was also a quota for mainland residents to apply for One-way Permit
under special circumstances to immigrate to Hong Kong.
Many of the Vietnamese people sought refuge in Hong Kong as a result of the war and persecution in Vietnam since the mid-1970s. Backed by a humanitarian policy of the Hong Kong Government, and under the auspices of the United Nations
, some Vietnamese were permitted to settle in Hong Kong. Between 1975 and 1999, 143,700 Vietnamese refugees were resettled in other countries and more than 67,000 Vietnamese migrants were repatriated. The illegal entry of Vietnamese refugees was a problem that plagued the Hong Kong government for 25 years. Finally in 2000, the government announced that it would widen the Local Resettlement Scheme for Vietnamese refugees and migrants, allowing the last remaining 1,400 refugees and migrants to settle in Hong Kong, granting them the right of abode.
The terms "right of abode" first appeared in Annex I of the Declaration as the government of the People's Republic of China elaborated its basic policies regarding Hong Kong. Section XIV—which concerns right of abode, travel, and immigration—stated:
was adopted on April 4, 1990 by the Seventh National People's Congress
of the People's Republic of China, and went into effect on July 1, 1997.
Certain classes of people hold Hong Kong Permanent Resident status, and hence the right of abode, by virtue of Article 24 of the Basic law. (Others may have the right of abode by statute
>Transitional provisions in the Immigration Ordinance (Cap 115) give rights to certain other people who would not otherwise have it: Schedule 1(6) preserves the right of abode for many pre-handover permanent residents; and Section 2AAA gives those who lost permanent resident status on or after handover the right to land (including the right to live, work and study without restriction). This applies to many who have never lived in or even visited Hong Kong, for instance pre-handover British Dependent Territories Citizens by descent.
>A guide to the Right of Abode in Hong Kong, with scanned letters from the HK Immigration Department
). The Article lists the following classes:
On the other hand, Article 22 states that for the purpose of entry into Hong Kong, 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 Hong Kong government.
Under the Immigration Ordinance, a Chinese national applying for permanent residence and the right of abode under (2) above may qualify on the basis of any seven-year period in Hong Kong, while a non-Chinese national applying under (4) may only qualify on the basis of seven years immediately preceding the application. The latter requirement was challenged in Fateh Muhammad v. Commissioner of Registration
as discriminatory and inconsistent with the Basic Law, but was upheld in the Court of Final Appeal in 2001.
in Hong Kong prompted a fierce debate at the end of the 20th century and tested the "One Country, Two Systems
" policy towards Hong Kong
of the People's Republic of China
. The debate erupted on 29 January 1999, when the Hong Kong Court of Final Appeal ruled that the children of parents who have the right of abode
in Hong Kong also have the right of abode, irrespective of whether their parents were permanent residents at the time of their birth. This ruling would have granted immediate right of abode to up to 300,000 people in Mainland China
, depending upon whether family unification would have been limited to children under a certain age, or extended to all people.
Many political commentators claimed that Hong Kong would be experience a surge in people claiming the right of abode from mainland China, possibly disrupting the economy of Hong Kong
, which prompted the Hong Kong Government to ask the Standing Committee of the National People's Congress
to reinterpret Articles 22(4) and 24(2)(3) of Hong Kong's Basic Law
, which effectively overturned the court decision. This move prompted large protest
s and debate over whether or not Hong Kong's judiciary
remained independent from that of mainland China
. The NPC's interpretation was appealed to the Court of Final Appeal, who ruled that the NPC's interpretation of the Basic Law was constitutional, thus denying almost all people listed as plaintiffs, including those already in Hong Kong since the first week of 1997, the right of abode.
According to Article 24 of the Basic Law
, Chinese nationals may acquire the right of abode in Hong Kong inter alia by one of the following three ways:
Many people from Hong Kong had moved to Mainland China and started families, and under the immigration law prior to 1 July 1997, their children born in mainland China had no right of abode in Hong Kong. After the Basic Law came into effect, the government of Hong Kong realized that Article 24(2)(3) would have permitted thousands of children in mainland China, who previously had no right to enter Hong Kong for settlement, to immigrate to Hong Kong. Many children who had already illegally come to Hong Kong or overstayed their visas presented themselves to immigration authorities and claimed that they were entitled to stay in Hong Kong under Article 24(2)(3).
In response, the Legislative Council
proposed to restrict the right of such persons by adding an additional requirement that one of the child's parents must have been a permanent resident at the time of the child's birth. On 10 July 1997, the Legislative Council passed the Immigration Amendment No. 3 Ordinance that introduced a certification system. Under this system, any person who claims to have the right of abode in Hong Kong can prove their status only by showing a certificate of right of abode issued by the Director of Immigration of Hong Kong. This certificate could be applied for only in mainland China, and it would not be issued until the application obtained a one-way permit to cross the border to Hong Kong from the Chinese Public Security Bureau
. The amendment was made retroactive to 1 July 1997, which meant that even children who had already arrived in Hong Kong with previously sufficient legal documentation would have been stripped of their right for lack of a certificate that did not yet exist when they entered Hong Kong. The retroactivity of the amendment triggered a number of test cases in court, which eventually came before the Court of Final Appeal, the highest judicial authority in Hong Kong, as Ng Ka Ling v. Director of Immigration.
In the case of Ng Ka Ling v. Director of Immigration, the Court of Final Appeal was asked to rule on two major issues in the challenge of the constitutionality of the Immigration Ordinance. One of which was whether, in order to be deemed a permanent resident under Article 24(2)(3), "persons of Chinese nationality born outside of Hong Kong of those residents listed" who were permanent residents article Article 24(2)(1) and Article 24(2)(2) must have been born at a time when either parent had already become a permanent resident, or whether it was sufficient that either parent subsequently acquired permanent residence. Another issue was whether persons of PRC nationality living in mainland China who qualified for permanent residence in Hong Kong under Article 24 would have to acquire an exit permit from the Chinese government to leave mainland China before they could exercise the right of abode in Hong Kong. This requirement was allegedly justified on the basis of Article 22 of the Basic Law, which states that "people from other parts of China must apply for approval" from the Chinese government before entering Hong Kong, and that the central government in Beijing
determines the number of people who may enter Hong Kong for settlement, after consultation with the Hong Kong government. The issue thus became one of whether Article 22 constituted a restriction to free exercise of Article 24.
The Court of Final Appeal announced its far-reaching verdict on 29 January 1999, which affirmed some fundamental constitutional principles. The Court of Final Appeal held that the Basic Law was a living document that, like any other constitution, should receive a generous and purposive approach to interpretation. The Court of Final Appeal also held that in considering any particular provision, the court should take into account the International Covenant of Civil and Political Rights (ICCPR) as it applied to Hong Kong. The Court of Final Appeal found that the right of abode was a core right under the ICCPR, and that based upon the ICCPR and other international treaties, taking away a core right by retroactive legislation was unconstitutional, and in this regard, no distinction should be drawn between legitimate and illegitimate children. The court also rejected the idea that Article 22(4) qualified the right of abode in Article 24(2)(3). The Court found that a scheme to verify the claim of right of abode was in itself constitutional, but that linking the certification system to the one-way permit system, which essentially concerned the right to exit mainland China and nothing to do with the right of abode in Hong Kong, was unconstitutional. In another decision delivered on the same day, the Court further held that, as a matter of construction of Article 24, it was unnecessary that the parent was a Hong Kong permanent resident at the time of the birth of the claimant in order for the claimant to enjoy a right of abode in the HKSAR.
Based on the ruling, the Hong Kong Government estimated that the additional eligible persons in Mainland China
who can obtain the Right of Abode (and therefore can immigrate to Hong Kong) within ten years would reach 1.6 million, and would result in very severe social and economic problems. While some questioned the methodology of the survey, opinion polls conducted revealed widespread concerns among the public on the consequences.
(NPC) of the People's Republic of China
to amend the part of the Basic Law in order to redress the problem. They argued that judgment has correctly reflected the true legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law
, and there are precedents in common law jurisdictions to repudiate a court judgment by means of legislative amendment. However, the Government pointed out (in May 1999) the disadvantages of such option, that since the NPC would meet only once a year in March, a large number of ROA claimants would have flooded Hong Kong by then, and also the Basic Law, as a constitutional document, should not be amended lightly before other options are fully explored.
Based on the above, the Hong Kong Government sought interpretation of, rather than amendment to, the Basic Law from the Standing Committee of the National People's Congress
(NPCSC). The power of interpretation of the Basic Law by the NPCSC is explicitly provided under Article 158(1) of the Basic Law
. However, no mechanisms are explicitly provided under that Article for the Government to take the initiative to seek an interpretation. (The Article provides only that the Court should seek an interpretation if it comes across Basic Law provisions concerning affairs under the responsibility of the Central Government or its relationship with the HKSAR before the final judgment. Article 22 in question is arguably one of such provisions).
, Tung Chee Hwa
, announced measures to be taken by the Government, which was to seek the assistance of the State Council to approach the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law provisions concerning the right of abode. Commentators have widely commented that this is in contravention of Article 158 which stipulates the body that should seek an interpretation from the NPCSC is the Court of Final Appeal. Although the government, after the judgment of Lau Kong Yung & Others v Director of Immigration
was handed down, claimed that "the Court had confirmed that the Government had acted entirely constitutionally and legally" in requesting a NPCSC interpretation, the truth is the Court never endorsed or ratified the Government's acts. In the judgment, the Court affirmed that the NPCSC had unqualified power to interpret the Basic Law , but never discussed the issue as to whether the reference was legal. Therefore, this issue cannot be regarded as settled.
On 26 June 1999, in line with the request of the HKSAR Government, the NPCSC issued its interpretation which makes it clear that children born outside Hong Kong will be eligible for the right of abode only if at least one of their parents has already acquired permanent residence status at the time of their birth. Also, those eligible for ROA need to comply with Article 22 of the Basic Law, i.e. they need to apply for the necessary approval from the relevant Mainland authorities before entry into Hong Kong.
Some have argued that the judicial independence of Hong Kong is undermined by the act of Government seeking an interpretation of the Basic Law after a judgment by the judiciary has been made. (Some critics dubbed this a re-interpretation of the Basic Law). In addition, the fact that NPC is the law-making body of People's Republic of China
has prompted critics to argue that the principle of One country, two systems
is endangered. The Government argued otherwise. In its paper Right of Abode, The Solution, the problems facing the HKSAR, the options, and the considerations leading to the decision were elaborated. The Secretary for Justice, Elsie Leung
, further defended Government's decision in her speech to the Legislative Council
after announcing the decision.
Others have argued that regardless of the merits of the case, it was politically unwise for those worried about Hong Kong legal autonomy to use this as a test case to assert Hong Kong's judicial independence, since it is the general consensus that the Hong Kong public tended to support the position of the SAR government as well as the legal interpretation of the NPCSC.
Differences in opinion remain as to whether Hong Kong's judicial independence and the rule of law have been undermined. Criticism of the interpretation has originated largely from the legal sector.
, a Hong Kong Senior Counsel
and a member of Civic Party
, helped 3 Filipino families to apply for judicial review
at High Court
, in order to challenge the restriction stated in the Immigration Ordinances for foreign domestic helpers
who has 7 years continuous ordinary residence in Hong Kong through working to apply for permanent residency. It sparks a hot debate among the public in Hong Kong.
Right of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
in Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
is the right to legally reside in Hong Kong and was governed by rules both under British and Chinese administration. As the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
stood to resume sovereignty over Hong Kong in 1997, the nationality of Hong Kongers as well as their right of abode in the territory was formalized prior to the handover
Transfer of the sovereignty of Hong Kong
The transfer of sovereignty over Hong Kong from the United Kingdom to the People's Republic of China, referred to as ‘the Return’ or ‘the Reunification’ by the Chinese and ‘the Handover’ by others, took place on 1 July 1997...
. Since Hong Kong has never been an independent country, there is no provision for its own citizenship status. Hong Kong Permanent Resident
Hong Kong residents
Hong Kong residents , also called Residents of the Hong Kong Special Administrative Region. According to Hong Kong Basic Law, Residents of the Hong Kong Special Administrative Region include permanent residents and non-permanent residents...
is the legal status for those who have the right of abode in Hong Kong. Some rights in Hong Kong (such as the right to vote) are granted to all permanent residents, while others (such as the right to hold a HKSAR passport) are restricted to permanent residents who are also Chinese citizens
Nationality Law of the People's Republic of China
The Nationality Law of the People's Republic of China regulates citizenship in the People's Republic of China . Such citizenship is obtained by birth when at least one parent is of Chinese nationality or by naturalization....
.
Hong Kong's close proximity to the People's Republic of China; its colonial relationship with the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
; and the subsequent Handover in 1997 generated various right of abode issues as early as the 1950s. Right of abode is still a relevant topic today.
Rights
The term "right of abode" was first introduced in the Sino-British Joint DeclarationSino-British Joint Declaration
The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...
and has since become synonymous with the permanent resident status.
A Hong Kong permanent resident has the right
- to land in the HKSAR;
- to be free from any condition of stay (including a limit of stay) in the HKSAR;
- not to be deported from the HKSAR; and
- not to be removed from the HKSAR.
Before the Handover
Transfer of the sovereignty of Hong Kong
The transfer of sovereignty over Hong Kong from the United Kingdom to the People's Republic of China, referred to as ‘the Return’ or ‘the Reunification’ by the Chinese and ‘the Handover’ by others, took place on 1 July 1997...
in 1997, these rights were the same and linked to having the British Dependent Territories citizenship (by virtue of a connection to Hong Kong) or British National (Overseas)
British National (Overseas)
British National , commonly known as BN, is one of the major classes of British nationality under British nationality law. Holders of this nationality are British nationals and Commonwealth citizens, but not British Citizens...
.
The fundamental rights and duties of residents, which include permanent residents and non-permanent residents, are stated in Chapter III of the Hong Kong Basic Law.
Colonial era
During British administration prior to 1997, right of abode in Hong Kong was shaped by British nationality laws, and immigration policies since 1950s. With the Handover imminent in 1997, the Sino-British Joint DeclarationSino-British Joint Declaration
The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...
and the Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
defined who may reside in Hong Kong once China assumes sovereignty over Hong Kong.
British nationality
Since Hong Kong was created a British colony in 1842, those who were born in the territory or become naturalized had British nationality. This included the right to enter and live in United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
in addition to Hong Kong.
By 1960s, the United Kingdom passed the Commonwealth Immigrants Act 1962
Commonwealth Immigrants Act 1962
The Commonwealth Immigrants Act 1962 was an Act of the Parliament of the United Kingdom.Before the Act was passed, citizens of British commonwealth countries had extensive rights to migrate to the UK...
and Commonwealth Immigrants Act 1968. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonization of the 1960s, the British government tightened immigration control into the United Kingdom and Islands (the UK, the Channel Islands
Channel Islands
The Channel Islands are an archipelago of British Crown Dependencies in the English Channel, off the French coast of Normandy. They include two separate bailiwicks: the Bailiwick of Guernsey and the Bailiwick of Jersey...
and the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...
). As such, British nationals connected to Hong Kong were subjected to immigration control since 1962 and no longer had the right of abode in the United Kingdom.
Until 1997, British nationality related closely with the permanent resident status which guaranteed right of abode. Hong Kong permanent residents had British nationality either by birth, naturalization or by descent. The type of British citizenship connected to Hong Kong eventually evolved to become different from that of the United Kingdom. What has not changed is the definition that a Hong Kong permanent resident has the right of abode in Hong Kong.
Immigration policies
There was no immigration restriction into Hong Kong until 1950. People were free to travel across the Hong Kong-Chinese border. With the establishment of the People's Republic of China in 1949, the Hong Kong government had decided to close the border and implement immigration control in attempt to stem waves of immigrants and refugees. The government also began to register Hong Kong residents in order to issue the compulsory identity cardsHong Kong Identity Card
The Hong Kong Identity Card is an official identity document issued by the Immigration Department of Hong Kong. The Hong Kong Permanent Identity Card is a class of HKID issued to Hong Kong residents who have the right of abode in Hong Kong SAR. According to the Registration of Persons Ordinance...
. The Hong Kong ID card is proof of legal residency still in use today.
Nevertheless, immigration boom intensified throughout the 50s and 60s with the onset of Cultural Revolution
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
. The government adopted the Touch Base Policy in 1974 and began repatriating immigrants intercepted at the border. The government abolished the policy by 1980 and began repatriating all illegal immigrants once they are discovered.
Even though the PRC maintains ethnic Chinese of Hong Kong are Chinese nationals, Hong Kong residents were subjected to immigration control when entering China and had no right of abode in the mainland. There was also a quota for mainland residents to apply for One-way Permit
One-way Permit
A One-way Permit is a document issued by the People's Republic of China allowing residents of mainland China to leave the mainland for Hong Kong....
under special circumstances to immigrate to Hong Kong.
Many of the Vietnamese people sought refuge in Hong Kong as a result of the war and persecution in Vietnam since the mid-1970s. Backed by a humanitarian policy of the Hong Kong Government, and under the auspices of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, some Vietnamese were permitted to settle in Hong Kong. Between 1975 and 1999, 143,700 Vietnamese refugees were resettled in other countries and more than 67,000 Vietnamese migrants were repatriated. The illegal entry of Vietnamese refugees was a problem that plagued the Hong Kong government for 25 years. Finally in 2000, the government announced that it would widen the Local Resettlement Scheme for Vietnamese refugees and migrants, allowing the last remaining 1,400 refugees and migrants to settle in Hong Kong, granting them the right of abode.
Sino-British Joint Declaration
With the signing of the Sino-British Joint Declaration on 19 December 1984, the future of Hong Kong was set, when the PRC would assume sovereignty over the entire ceded territory of Hong Kong on 1 July 1997.The terms "right of abode" first appeared in Annex I of the Declaration as the government of the People's Republic of China elaborated its basic policies regarding Hong Kong. Section XIV—which concerns right of abode, travel, and immigration—stated:
The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:
- all Chinese nationals who where born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;
- all other persons who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more and who have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region, and persons under 21 years of age who were born of such persons in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
- any other persons who had the right of abode only in Hong Kong before the establishment of the Hong Kong Special Administrative Region.
Basic Law
Drafted in accordance with the Sino-British Joint Declaration, the Hong Kong Basic LawHong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
was adopted on April 4, 1990 by the Seventh National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
of the People's Republic of China, and went into effect on July 1, 1997.
Certain classes of people hold Hong Kong Permanent Resident status, and hence the right of abode, by virtue of Article 24 of the Basic law. (Others may have the right of abode by statute
>Transitional provisions in the Immigration Ordinance (Cap 115) give rights to certain other people who would not otherwise have it: Schedule 1(6) preserves the right of abode for many pre-handover permanent residents; and Section 2AAA gives those who lost permanent resident status on or after handover the right to land (including the right to live, work and study without restriction). This applies to many who have never lived in or even visited Hong Kong, for instance pre-handover British Dependent Territories Citizens by descent.
>A guide to the Right of Abode in Hong Kong, with scanned letters from the HK Immigration Department
). The Article lists the following classes:
- Chinese citizensNationality Law of the People's Republic of ChinaThe Nationality Law of the People's Republic of China regulates citizenship in the People's Republic of China . Such citizenship is obtained by birth when at least one parent is of Chinese nationality or by naturalization....
born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region; - Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;
- Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);
- Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;
- Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and
- Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.
On the other hand, Article 22 states that for the purpose of entry into Hong Kong, 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
Central People's Government
The Central People's Government is the central government of the People's Republic of China in Beijing. According to the 1982 Constitution, "Central People's Government" is synonymous with the State Council.-History:...
after consulting the Hong Kong government.
Under the Immigration Ordinance, a Chinese national applying for permanent residence and the right of abode under (2) above may qualify on the basis of any seven-year period in Hong Kong, while a non-Chinese national applying under (4) may only qualify on the basis of seven years immediately preceding the application. The latter requirement was challenged in Fateh Muhammad v. Commissioner of Registration
Fateh Muhammad v. Commissioner of Registration
Fateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal was a 2001 case in the Court of Final Appeal, Hong Kong by a Pakistani migrant seeking the right of abode in Hong Kong...
as discriminatory and inconsistent with the Basic Law, but was upheld in the Court of Final Appeal in 2001.
After the Handover
The Hong Kong Basic Law came into effect on July 1, 1997, along with the right of abode eligibility defined therein. Most Hong Kong residents became solely Chinese citizen on July 1, 1997 and continue to maintain their right of abode in Hong Kong as before the Handover. Non-Chinese citizens with Hong Kong right of abode still maintain their original citizenship unless they successfully naturalize as Chinese citizens.The debate in 1999
The issue of who has the right of abodeRight of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
in Hong Kong prompted a fierce debate at the end of the 20th century and tested the "One Country, Two Systems
One country, two systems
"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...
" policy towards Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
. The debate erupted on 29 January 1999, when the Hong Kong Court of Final Appeal ruled that the children of parents who have the right of abode
Right of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
in Hong Kong also have the right of abode, irrespective of whether their parents were permanent residents at the time of their birth. This ruling would have granted immediate right of abode to up to 300,000 people in Mainland China
Mainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
, depending upon whether family unification would have been limited to children under a certain age, or extended to all people.
Many political commentators claimed that Hong Kong would be experience a surge in people claiming the right of abode from mainland China, possibly disrupting the economy of Hong Kong
Economy of Hong Kong
As one of the world's leading international financial centres, Hong Kong has a major capitalist service economy characterised by low taxation and free trade, and the currency, Hong Kong dollar, is the ninth most traded currency in the world. Hong Kong has remained as the world's freest economy,...
, which prompted the Hong Kong Government to ask the Standing Committee of the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
to reinterpret Articles 22(4) and 24(2)(3) of Hong Kong's Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
, which effectively overturned the court decision. This move prompted large protest
Protest
A protest is an expression of objection, by words or by actions, to particular events, policies or situations. Protests can take many different forms, from individual statements to mass demonstrations...
s and debate over whether or not Hong Kong's judiciary
Judiciary of Hong Kong
The Judiciary of Hong Kong is responsible for the administration of justice in Hong Kong. It hears all prosecutions and civil disputes, including disputes between individuals and the government. It is fundamental to Hong Kong’s legal system that members of the judiciary are independent of the...
remained independent from that of mainland China
Mainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
. The NPC's interpretation was appealed to the Court of Final Appeal, who ruled that the NPC's interpretation of the Basic Law was constitutional, thus denying almost all people listed as plaintiffs, including those already in Hong Kong since the first week of 1997, the right of abode.
According to Article 24 of the Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
, Chinese nationals may acquire the right of abode in Hong Kong inter alia by one of the following three ways:
- if they were born in Hong Kong before or after the transfer of sovereignty (Article 24(2) (1));
- if they have resided in Hong Kong for a continuous period of not less than seven years before or after the transfer of sovereignty (Article 24(2) (2)); or
- if they were born outside Hong Kong to persons covered by the above two categories (Article 24(2) (3)).
Many people from Hong Kong had moved to Mainland China and started families, and under the immigration law prior to 1 July 1997, their children born in mainland China had no right of abode in Hong Kong. After the Basic Law came into effect, the government of Hong Kong realized that Article 24(2)(3) would have permitted thousands of children in mainland China, who previously had no right to enter Hong Kong for settlement, to immigrate to Hong Kong. Many children who had already illegally come to Hong Kong or overstayed their visas presented themselves to immigration authorities and claimed that they were entitled to stay in Hong Kong under Article 24(2)(3).
In response, the Legislative Council
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
proposed to restrict the right of such persons by adding an additional requirement that one of the child's parents must have been a permanent resident at the time of the child's birth. On 10 July 1997, the Legislative Council passed the Immigration Amendment No. 3 Ordinance that introduced a certification system. Under this system, any person who claims to have the right of abode in Hong Kong can prove their status only by showing a certificate of right of abode issued by the Director of Immigration of Hong Kong. This certificate could be applied for only in mainland China, and it would not be issued until the application obtained a one-way permit to cross the border to Hong Kong from the Chinese Public Security Bureau
Public Security Bureau
In the People's Republic of China, a public security bureau refers to the government offices while the smaller offices are called Police posts which are similar in concept to the Japanese Kōban system) present in each province and municipality that handles policing , public security, and...
. The amendment was made retroactive to 1 July 1997, which meant that even children who had already arrived in Hong Kong with previously sufficient legal documentation would have been stripped of their right for lack of a certificate that did not yet exist when they entered Hong Kong. The retroactivity of the amendment triggered a number of test cases in court, which eventually came before the Court of Final Appeal, the highest judicial authority in Hong Kong, as Ng Ka Ling v. Director of Immigration.
In the case of Ng Ka Ling v. Director of Immigration, the Court of Final Appeal was asked to rule on two major issues in the challenge of the constitutionality of the Immigration Ordinance. One of which was whether, in order to be deemed a permanent resident under Article 24(2)(3), "persons of Chinese nationality born outside of Hong Kong of those residents listed" who were permanent residents article Article 24(2)(1) and Article 24(2)(2) must have been born at a time when either parent had already become a permanent resident, or whether it was sufficient that either parent subsequently acquired permanent residence. Another issue was whether persons of PRC nationality living in mainland China who qualified for permanent residence in Hong Kong under Article 24 would have to acquire an exit permit from the Chinese government to leave mainland China before they could exercise the right of abode in Hong Kong. This requirement was allegedly justified on the basis of Article 22 of the Basic Law, which states that "people from other parts of China must apply for approval" from the Chinese government before entering Hong Kong, and that the central government in Beijing
Beijing
Beijing , also known as Peking , is the capital of the People's Republic of China and one of the most populous cities in the world, with a population of 19,612,368 as of 2010. The city is the country's political, cultural, and educational center, and home to the headquarters for most of China's...
determines the number of people who may enter Hong Kong for settlement, after consultation with the Hong Kong government. The issue thus became one of whether Article 22 constituted a restriction to free exercise of Article 24.
The Court of Final Appeal announced its far-reaching verdict on 29 January 1999, which affirmed some fundamental constitutional principles. The Court of Final Appeal held that the Basic Law was a living document that, like any other constitution, should receive a generous and purposive approach to interpretation. The Court of Final Appeal also held that in considering any particular provision, the court should take into account the International Covenant of Civil and Political Rights (ICCPR) as it applied to Hong Kong. The Court of Final Appeal found that the right of abode was a core right under the ICCPR, and that based upon the ICCPR and other international treaties, taking away a core right by retroactive legislation was unconstitutional, and in this regard, no distinction should be drawn between legitimate and illegitimate children. The court also rejected the idea that Article 22(4) qualified the right of abode in Article 24(2)(3). The Court found that a scheme to verify the claim of right of abode was in itself constitutional, but that linking the certification system to the one-way permit system, which essentially concerned the right to exit mainland China and nothing to do with the right of abode in Hong Kong, was unconstitutional. In another decision delivered on the same day, the Court further held that, as a matter of construction of Article 24, it was unnecessary that the parent was a Hong Kong permanent resident at the time of the birth of the claimant in order for the claimant to enjoy a right of abode in the HKSAR.
Based on the ruling, the Hong Kong Government estimated that the additional eligible persons in Mainland China
Mainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
who can obtain the Right of Abode (and therefore can immigrate to Hong Kong) within ten years would reach 1.6 million, and would result in very severe social and economic problems. While some questioned the methodology of the survey, opinion polls conducted revealed widespread concerns among the public on the consequences.
The debate on way forward
A number of persons in the legal sector believed that the best way forward was to seek the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
(NPC) of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
to amend the part of the Basic Law in order to redress the problem. They argued that judgment has correctly reflected the true legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
, and there are precedents in common law jurisdictions to repudiate a court judgment by means of legislative amendment. However, the Government pointed out (in May 1999) the disadvantages of such option, that since the NPC would meet only once a year in March, a large number of ROA claimants would have flooded Hong Kong by then, and also the Basic Law, as a constitutional document, should not be amended lightly before other options are fully explored.
Based on the above, the Hong Kong Government sought interpretation of, rather than amendment to, the Basic Law from the Standing Committee of the National People's Congress
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
(NPCSC). The power of interpretation of the Basic Law by the NPCSC is explicitly provided under Article 158(1) of the Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
. However, no mechanisms are explicitly provided under that Article for the Government to take the initiative to seek an interpretation. (The Article provides only that the Court should seek an interpretation if it comes across Basic Law provisions concerning affairs under the responsibility of the Central Government or its relationship with the HKSAR before the final judgment. Article 22 in question is arguably one of such provisions).
Judicial independence undermined?
Former Chief ExecutiveChief Executive of Hong Kong
The Chief Executive of Hong Kong is the President of the Executive Council of Hong Kong and head of the Government of the Hong Kong Special Administrative Region. The position was created to replace the Governor of Hong Kong, who was the head of the Hong Kong government during British rule...
, Tung Chee Hwa
Tung Chee Hwa
Tung Chee Hwa, GBM was the first Chief Executive and President of the Executive Council of the Hong Kong Special Administrative Region of the People's Republic of China....
, announced measures to be taken by the Government, which was to seek the assistance of the State Council to approach the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law provisions concerning the right of abode. Commentators have widely commented that this is in contravention of Article 158 which stipulates the body that should seek an interpretation from the NPCSC is the Court of Final Appeal. Although the government, after the judgment of Lau Kong Yung & Others v Director of Immigration
Lau Kong Yung v. Director of Immigration
Lau Kong Yung v. Director of Immigration was a 1999 right of abode case in the Hong Kong Court of Final Appeal following closely on the heels of the landmark Ng Ka Ling v. Director of Immigration decision earlier that year...
was handed down, claimed that "the Court had confirmed that the Government had acted entirely constitutionally and legally" in requesting a NPCSC interpretation, the truth is the Court never endorsed or ratified the Government's acts. In the judgment, the Court affirmed that the NPCSC had unqualified power to interpret the Basic Law , but never discussed the issue as to whether the reference was legal. Therefore, this issue cannot be regarded as settled.
On 26 June 1999, in line with the request of the HKSAR Government, the NPCSC issued its interpretation which makes it clear that children born outside Hong Kong will be eligible for the right of abode only if at least one of their parents has already acquired permanent residence status at the time of their birth. Also, those eligible for ROA need to comply with Article 22 of the Basic Law, i.e. they need to apply for the necessary approval from the relevant Mainland authorities before entry into Hong Kong.
Some have argued that the judicial independence of Hong Kong is undermined by the act of Government seeking an interpretation of the Basic Law after a judgment by the judiciary has been made. (Some critics dubbed this a re-interpretation of the Basic Law). In addition, the fact that NPC is the law-making body of People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
has prompted critics to argue that the principle of One country, two systems
One country, two systems
"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...
is endangered. The Government argued otherwise. In its paper Right of Abode, The Solution, the problems facing the HKSAR, the options, and the considerations leading to the decision were elaborated. The Secretary for Justice, Elsie Leung
Elsie Leung
Elsie Leung Oi-sie, GBM JP, was the Secretary for Justice of Hong Kong from 1997 to 2005, and was a member of the Executive Council of Hong Kong. She was succeeded by Wong Yan Lung, SC, on 20 October 2005.-Education:...
, further defended Government's decision in her speech to the Legislative Council
Legislative Council of Hong Kong
The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...
after announcing the decision.
Others have argued that regardless of the merits of the case, it was politically unwise for those worried about Hong Kong legal autonomy to use this as a test case to assert Hong Kong's judicial independence, since it is the general consensus that the Hong Kong public tended to support the position of the SAR government as well as the legal interpretation of the NPCSC.
Differences in opinion remain as to whether Hong Kong's judicial independence and the rule of law have been undermined. Criticism of the interpretation has originated largely from the legal sector.
The debate in 2011
Gladys LiGladys Li
Gladys Veronica Li, Senior Counsel at the Hong Kong Bar with a busy constitutional law and human rights practice, is a founding member of the Hong Kong Civic Party. She began to take an interest in public affairs on her return to Hong Kong in 1982, after 10 years' practice as a barrister in England...
, a Hong Kong Senior Counsel
Senior Counsel
The title of Senior Counsel or State Counsel is given to a senior barrister or advocate in some countries, typically equivalent to the title "Queen's Counsel" used in Commonwealth Realms...
and a member of Civic Party
Civic Party
Civic Party is a liberal democratic political party in Hong Kong.The Civic Party is currently the third largest political party in the Legislative Council of Hong Kong, with five members securing seats in the 2008 Hong Kong Legislative Council elections...
, helped 3 Filipino families to apply for judicial review
Judicial review in Hong Kong
Judicial review in Hong Kong is conducted according to the Constitutional and Administrative Law List . It comprises two different aspects: firstly, a review of domestic legislation as to their compatibility with the Basic Law ; and secondly, judicial review of administrative decisions under...
at High Court
High Court (Hong Kong)
The High Court in Hong Kong consists of the Court of Appeal and the Court of First Instance. It deals with criminal and civil cases which have risen beyond the lower courts. It was named the Supreme Court before 1997.- High Court Building :...
, in order to challenge the restriction stated in the Immigration Ordinances for foreign domestic helpers
Foreign domestic helpers in Hong Kong
Foreign domestic helpers in Hong Kong are foreign domestic workers and housemaids employed by Hongkongers, typically families. They make up approximately 3% of the population of Hong Kong and an overwhelming majority of them are women...
who has 7 years continuous ordinary residence in Hong Kong through working to apply for permanent residency. It sparks a hot debate among the public in Hong Kong.
See also
- Politics of Hong KongPolitics of Hong KongPolitics of Hong Kong takes place in a framework of a political system dominated by its constitutional document, the Basic Law of Hong Kong, its own legislature, the Chief Executive as the head of government, and of a multi-party system...
- Regina IpRegina IpRegina Ip Lau Suk-yee, GBS JP is a member of the Legislative Council of Hong Kong , as well as the co-founder and current chairwoman of the New People's Party and Savantas Policy Institute....
- Demographics of Hong KongDemographics of Hong KongThis article is about the demographic features of the population of Hong Kong, including population density, ethnicity, education level, health of the populace, economic status, religious affiliations and other aspects of the population....
- Hong Kongers
- Mainlander (Hong Kong)
- Director of Immigration v. Chong Fung YuenDirector of Immigration v. Chong Fung YuenDirector of Immigration v. Chong Fung Yuen was a 2001 case in the Court of Final Appeal, Hong Kong. Chief Justice Andrew Li, in the Court's unanimous opinion, affirmed lower court decisions that Chinese citizens born in Hong Kong enjoyed the right of abode regardless of the Hong Kong immigration...