HONG KONG: Right of abode policy separates families

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: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

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).

BACKGROUND

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.

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.

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.

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.

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.

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.

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.

SUGGESTED ACTION

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.

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.
 

 

To support this case, please click here: SEND APPEAL LETTER