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HONG KONG: Right of abode policy separates families

January 21, 2002

URGENT ACTION URGENT ACTION URGENT ACTION URGENT ACTION URGENT ACTION
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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM
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21 January 2002
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UA-01-2002 Right of abode policy separates families
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HONG KONG: Denial of right to family unity
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Because of the immigration policies of the Hong Kong government and its actions to overturn a court ruling, thousands of families in Hong Kong in which at least one member is from mainland China face being separated. This is despite Article 16 of the Universal Declaration of Human Rights, which states: &quot;The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.&quot;
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Over 4,700 persons (all mainland-born children of at least one Hong Kong permanent resident) face deportation to mainland China on March 31 unless the government changes its policy and enables them to stay with their Hong Kong families. Those seeking right of abode in Hong Kong have conducted a 2-day protest around Hong Kong to defend their right to live with their own families. We are asking you to support their protest by writing to the Hong Kong authorities (sample letter and addresses are provided below).
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BACKGROUND
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On Jan. 29, 1999, the Court of Final Appeal (CFA) (the highest court in Hong Kong) ruled that all Chinese citizens who are children of Hong Kong permanent residents born outside of Hong Kong have the right of abode in the Hong Kong Special Administrative Region (HKSAR), irrespective of whether their parents had became a permanent resident at the time of their birth.
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At the request of the Hong Kong government, however, the Standing Committee of the National People¡¦s Congress (NPC) in Beijing on June 26, 1999, reinterpreted Articles 22(4) and 24(2)(3) of the Basic Law to effectively overturn the CFA¡¦s decision of Jan. 29, thus retrospectively denying the right of abode in Hong Kong to thousands of people from mainland China. In its ruling, the NPC Standing Committee said that those who were born before one of their parents became a permanent resident of Hong Kong did not have right of abode in the HKSAR. For those who qualify, the mechanism for gaining right of abode in Hong Kong, the Standing Committee of the NPC said, is to get a one-way permit from mainland authorities before they could resettle in Hong Kong.
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After the announcement of the NPC Standing Committee, however, the chief executive of the Hong Kong, Tung Chee-hwa, said that those people from the mainland who had arrived in Hong Kong between July 1, 1997, and Jan. 29, 1999, and who had made a claim could remain in the HKSAR and would be granted right of abode although the authorities generally had refused to accept any.
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After this concession policy was made by the Hong Kong government, another court case was filed by 5,114 individuals seeking right of abode in Hong Kong. This group of people claimed that they had followed the advice of the chief executive of the HKSAR and other government officials that were made in public statements and/or the written requests of the government¡¦s Legal Aid Department not to file legal cases for right of abode until the CFA ruling of Jan. 29, 1999. Thus, when the chief executive issued the government¡¦s concession policy, they felt that they had been misled by the government and had a legitimate expectation through both oral and written statements of the government to have their status determined by the CFA on Jan. 29, 1999.
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The outcome of this second case was rendered by the CFA on Jan. 10, 2002, in which the court found that all of the claimants were denied right of abode except for about 400 claimants who may be granted right of abode through the discretion of the director of immigration as they had a letter from the Legal Aid Department asking them to refrain from legal action.
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These decisions have resulted in many personal tragedies in Hong Kong. Li Xiru, 72, who lost his claim for right of abode, for instance, will no longer be able to care for his 95-year-old ailing father. Meanwhile, Fang Chu-jun, a 20-year-old girl with physical and mental disabilities who was denied right of abode, will have to return to the mainland. And the Lam family will see their oldest son Lam Kam-ming, 20, be forced to return to the mainland while their 6-year-old daughter Lam Ming-sing is allowed to stay in Hong Kong.
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Prohibiting members of these families from living in the same home and community erodes the cohesion and care provided by the family and ignores the Hong Kong government¡¦s obligation to protect and assist the family as mandated in Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 9(1) of the Convention on the Rights of the Child (CRC). Consequently, the Hong Kong SAR government has not honoured its international treaty obligations under the ICESCR to maintain the unity of families.
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SUGGESTED ACTION
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Please write to Hong Kong government officials and ask them to grant right of abode to those people who lost their court case on Jan. 10, 2002, or at least allow them to legally remain in Hong Kong so that they can claim permanent residency status in seven years. As for those people in Hong Kong who have family members in mainland China who are not part of this court case but who nonetheless are separated, please ask that the HKSAR government work to reunite them as soon as possible. These requests are made on humanitarian grounds and on the need for the Hong Kong government to respect their obligations under the ICESCR and CRC regarding maintaining the unity of the family and the care of children.
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Please also write to U.N. officials and ask them to bring pressure on the Hong Kong government to honour their obligations under the ICESCR and the CRC.
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SAMPLE LETTER
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Dear Chief Executive
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I am writing to you with a humanitarian appeal for thousands of people likely to be disconnected from their families because they cannot claim their right of abode with their Hong Kong parents. In particular I appeal to you to enable the persons (more than 4,700) denied their right of abode by the recent Court of Final Appeal decision on January 10. The technicality that these people did not have a letter from the Legal Aid Department ignores the fact that your administration led them to believe they were doing the right thing by not filing legal cases before Januray 29, 1999. It is clear that the international and moral obligations of the Hong Kong SAR are not being upheld by this ruling, and it is my expectation that the government will intervene to ensure that family units can be protected.
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Yours sincerely
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SEND FAXES AND EMAILS TO:
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HONG KONG OFFICIALS -
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Mr. Tung Chee Hwa
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Chief Executive, Hong Kong SAR
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5/F Main Wing
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Central Government Offices
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Lower Albert Road
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Central
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Hong Kong
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Fax: 2509-9144
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Mr. Donald Tsang Yam Kuen
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Chief Secretary for Administration, Hong Kong SAR
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12/F West Wing
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Central Government Offices
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11 Ice House Street
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Central
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Hong Kong
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Fax: 2524-5695
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Mrs. Regina Ip Lau Shuk Yee
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Secretary for Security, Hong Kong SAR
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6/F Main and East Wings
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Central Government Offices
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Lower Albert Road
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Central
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Hong Kong
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Fax: 2868-5074
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Mr. Ambrose Lee Siu Kwong
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Director of Immigration
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Immigration Tower
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7 Gloucester Road
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Wan Chai
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Hong Kong
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Fax: 2824-1133
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UN HIGH COMMISSIONER FOR HUMAN RIGHTS -
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Mrs. Mary Robinson
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Office of the UN High Commissioner for Human Rights
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Palais des nations
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8-14 avenue de la Paix,
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CH 1211 Geneve,
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Switzerland
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Fax: +41 229170213
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Email:
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PLEASE MARK: FOR THE ATTENTION OF MS. MARY ROBINSON

Document Type :
Urgent Appeal Case
Document ID :
UA-01-2002
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.