HONG KONG

Title:

Chan To Foon and Others v. Director of Immigration and Another

Court:

Hong Kong Court of First Instance

Date:

April 11, 2001

CRC Provisions:

Article 3: Best interests of the child
Article 10: Family reunification

Other International Provisions:

International Covenant on Civil and Political Rights, Article 23
International Covenant on Economic, Social and Cultural Rights, Article 10
Vienna Convention on the Law of Treaties, Article 21

Domestic Provisions:

Immigration Ordinance, Chapter 115, Sections 13, 19, 53A, 53D
Basic Law, Article 48
Hong Kong Bill of Rights, Section 11

Case Summary:

Background:

Four family members appealed an order from the Director of Immigration deporting a mother from Hong Kong to mainland China where she was born and raised. The family argued that the deportation order was issued in violation of a number of international conventions binding on Hong Kong.

Issue and resolution:

Immigration. The Court upheld the deportation order, noting Hong Kong's reservations to international conventions with respect to immigration matters.

Court reasoning:

The Director of Immigration was not obliged to consider the family's international human rights. The International Covenant on Economic, Social and Cultural Rights is merely aspirational and not a binding force in Hong Kong law. Moreover, because of reservations to the CRC and the International Covenant on Civil and Political Rights made with respect to Hong Kong immigration matters, there is no expectation that the Director would need to take these instruments into consideration when making a decision whether to deport a person unlawfully present in Hong Kong. This is so even where, as here, the person to be deported has children and family members who are Hong Kong permanent residents.

Excerpts citing CRC and other relevant human rights instruments:

30. But, as I have said, it is the Applicants' case that, in exercising his discretion under the Ordinance, the Director is obliged (when it is relevant to do so) to give consideration to the specific protections afforded to Hong Kong permanent residents by three international conventions. They are the International Convention on Civil and Political Rights ('the ICCPR'); the Convention on the Rights of the Child ('the CRC') and the International Covenant on Economic, Social and Cultural Rights ('the ICESCR'). The acknowledgment of various rights contained in these international instruments include the following:

(i) Art 23(1) of the ICCPR:

"Family is the natural and fundamental group unit of society and is entitled to be protected by society and the State."

(ii) Art 10(1) of the ICESCR:

"The widest possible protection and assistance should be accorded to the family, which is the fundamental group unit of society ..."

(iii) Art 3(1) of the CRC:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

And in Art 10(1) -

"In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner."

31. These three conventions have been applied to Hong Kong. Two of them, however, the ICCPR and the CRC, have been applied subject to reservations.

32. Two conventions - the ICCPR and the ICESCR - had been applied to Hong Kong prior to the resumption of sovereignty. But, upon resumption, Article 39 of the Basic Law made the following provisions:

"The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." [my emphasis]

33. It will be seen that only those provisions of the conventions which have been 'applied' to Hong Kong shall remain in force. In short, the existing reservations do not fall away; they remain. It will also be seen that the provisions contained in the conventions may be prescribed by law.

The reservations applicable to the ICCPR and the CRC

34. The ICCPR was first applied to Hong Kong when it was a dependent territory of Great Britain. It was applied, however, subject to a reservation in respect of immigration matters. The wording of that reservation is drafted as follows:

"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, the acceptance of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories." [my emphasis]

35. The ICCPR has, in fact, been incorporated into Hong Kong's domestic legislative, being embodied in our Bill of Rights. But that, in my view, has not altered the position brought about the registration of the reservation to the international convention itself. In this regard, section 11 of the Bill of Rights Ordinance effectively applies the terms of the international reservation to our domestic law. The section reads:

"As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

36. The second convention in respect of which a reservation has been applied concerning matters of immigration is the CRC. The Peoples' Republic of China ratified the CRC in 1992 subject to reservations. In June 1997, it informed the Secretary General of the United Nations that the reservations entered by it would also apply to Hong Kong from the date of resumption of sovereignty. The reservations include the following:

"The Government of the Peoples' Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time."

37. In summary, both the ICCPR and the CRC have been applied to Hong Kong subject to the reservation that, expressed broadly, our immigration laws may continue to be applied even if they conflict with or are in any way incompatible with those conventions. The Bill of Rights contains an exception to the exact same effect. In my judgment, the voice of those responsible for entering into the international instruments could not be clearer. The manifest instruction to the Director is that, in applying Hong Kong's immigration laws, he is not bound by the provisions of the ICCPR or the CRC. In light of this, I confess I fail to see how it can be argued that the Applicants have a legitimate expectation that the Director will (and must) take those same international instruments into account.

…

64. I am satisfied that the authorities on legitimate expectation in this field accept that by lawful action such expectations may be curtailed or expunged. I am satisfied that the reservations to the ICCPR and the CRC are certainly binding on Hong Kong's municipal courts. Those reservations make it manifest that, in what I have broadly termed immigration matters, those making administrative decisions need not take into account the protective provisions contained in the conventions. In short, in my judgment, the reservations pre-empt (in respect of all persons) emergence of any legitimate expectation in matters concerning illegal immigrants.

…

72. Hong Kong may therefore recognise the rights protected by the ICESCR. But they are rights which, having regard to this Territory's existing social difficulties, may only be guaranteed progressively; that is, as and when those difficulties are overcome. Matters of immigration, as our courts have recognised, remain a major problem. If unchecked, it is clear that, in the informed opinion of the Director, the problem will threaten the Territory's social fabric. As a result, in respect of immigration matters, the Government of Hong Kong is unable at this time to guarantee the rights protected in the Covenant when they relate to matters of immigration. I believe it may be taken that it is for this reason that no reservation was entered in respect of the ICESCR: it is an aspirational covenant, not one that creates absolute obligations.

…

79. In my view, what must be remembered in respect of immigration matters is that Hong Kong's reservations to the three conventions (and the exception to the Bill of Rights) do not offend peremptory norms. No reservation is made similar to a right to reserve child labour or torture or to continue to deny minorities the right to enjoy their own culture or profess their own religion or speak their own tongue. Of course, the predicament facing the Applicants is distressing. But the orders of removal made by the Director do not, I believe, involve an interference with the fundamental right to a family life. Instead they prevent the 1st Applicant from living with her husband and children without interruption in Hong Kong. The director's policy allows for visits by the mother and there does exist a system for the orderly and fair re-uniting of families, a system devised by the Mainland and Hong Kong authorities that attempts to balance public needs with the natural and legitimate desire of people married to Hong Kong residents to be able to live here with their spouses.

CRIN Comments:

CRIN believes this decision is inconsistent with the CRC. Under Article 3 of the Convention, children's best interests must be a primary consideration in all matters that concern them. This undoubtedly includes the decision whether to deport a parent. Moreover, children have the right under Article 9 of the Convention not to be separated from their parents, and the Director of Immigration's refusal to consider the effects that deporting the children's mother would have on them is a clear violation of their rights.

Citation:

[2001] HCFI 295; [2001] 3 HKLRD 109; HCAL58/1998 (11 April 2001)

Link to Full Judgment:

http://www.hklii.hk/eng/hk/cases/hkcfi/2001/295.html

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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