Right of abode: Court of Final Appeal decision in the cases of Cheung Lai-wah and Chan Kam-nga and the request for an interpretation by the Standing Committee of the National People's Congress of the People's Republic of China.
Note: with some necessary editing, this Annex reproduces paragraphs 230 to 238 of our report under the ICCPR and paragraphs 3 to 9 of the supplementary information that we provided to the Human Rights Committee immediately before its hearing of the report on 1 and 2 November 1999.
Right of abode: the law
1. Article 24 of the Basic Law provides that permanent residents of the HKSAR shall have the right of abode in the HKSAR and be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode. Article 24 also states that permanent residents of the HKSAR shall be:
- Chinese citizens1 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.
2. Article 24 is silent as to how persons who qualify as permanent residents are to establish that status. To meet that need, the Immigration (Amendment) (No.2) Ordinance ('the No. 2 Ordinance') - enacted on 1 July 1997 replaced the previous provisions of the Immigration Ordinance on permanent residency, clarified other provisions of Article 24, and introduced provisions for establishing that right in respect of claims under Article 24(2)(4), (5) and (6). It also provided for the circumstances in which persons lose that right and for the retention by such persons of a right to land in Hong Kong.
3. Under the No.2 Ordinance, persons in categories (4) and (5) may forfeit the right of abode if they are absent from Hong Kong continuously for 36 months. Those in category (6) may lose it if they are absent from Hong Kong for 36 months after acquiring the right of abode elsewhere2 . Permanent residents who left Hong Kong before 1 July 1997 and have obtained foreign nationality may retain the right of abode in the HKSAR. There is no need for them to return to Hong Kong in order to do so. Should they return to Hong Kong and wish to remain there, those who are ethnically Chinese will normally be regarded as Chinese nationals and will automatically retain their right of abode. But they may, at their option, remain in Hong Kong as foreign nationals and, subject to certain conditions3 , retain the right of abode. Essentially, they need only declare their new nationality to the Immigration Department. But there are certain exceptions (related to when the applicant left Hong Kong, how long he/she was away, and when he/she makes the declaration to the Immigration Department) that might prevent an applicant from retaining the right of abode. But persons so affected will still be free to enter Hong Kong for residence, study, and work without restriction.
Certificate of Entitlement (C of E) Scheme
4. Before 1 July 1997, persons covered by Article 24(2)(3) of the Basic Law were not entitled to the right of abode in Hong Kong. The Basic Law is silent on the procedures by which persons may establish their entitlement to the right of abode in the HKSAR. The Immigration (Amendment) (No. 3) Ordinance ('the No.3 Ordinance') was enacted on 10 July 1997, with effect from 1 July 1997, to provide such procedures. This Ordinance, which introduced the C of E Scheme, provides that a person's status as a permanent resident of the HKSAR under Article 24(2)(3) of the Basic Law can only be established by his/her holding, amongst other things, a valid travel document with a valid C of E affixed to it. In this connection, persons who were born in Mainland China to Hong Kong residents and claim that they have the right of abode in the HKSAR have to apply for a valid travel document and C of E before being admitted to Hong Kong. This arrangement ensures that those who claim that they have the right of abode in the HKSAR under Article 24(2)(3) of the Basic Law have that claim verified before entering the HKSAR. As at 31 December 1999, the Scheme had ensured the speedy and orderly admission of about 59,000 eligible children.
Legal challenges to the No.2 and No.3 Ordinances
(a) Cheung Lai-wah V Director of Immigration
5. Following the enactment of the No.3 Ordinance, parents of over 1,000 children born in Mainland China applied for legal aid to challenge the C of E Scheme's consistency with the Basic Law. Legal aid was granted to enable four test cases to be judicially reviewed. Cheung Lai-wah, the applicant in one of the four test cases, was a child born out of wedlock to a father who was a permanent resident in Hong Kong and a mother who was resident in Mainland China. The applicant entered Hong Kong before the two Ordinances took effect on 1 July 1997. In October 1997, the Court of First Instance affirmed the legality of the C of E Scheme and its consistency with the Basic Law. The Court also held the retrospectivity of the No.3 Ordinance to be lawful. It rejected the argument, advanced on behalf of the applicants, that any person who claims the right of abode is entitled to enter and/or remain in the HKSAR pending the determination of his claim. The Court also ruled that children born out of wedlock outside Hong Kong - to fathers who were permanent residents in Hong Kong - were eligible for the right of abode under Article 24 of the Basic Law irrespective of the status of their mothers. And the provision on illegitimacy in the No.2 Ordinance4, was unconstitutional.
6. The Government and the applicants in the four test cases appealed against these rulings. In April 1998, the Court of Appeal upheld the legality of the C of E Scheme and its retrospectivity to 1 July 1997. But it held that the C of E Scheme did not apply to persons who were in the HKSAR and came to Hong Kong before 1 July 1997. The illegitimacy provision was again ruled unconstitutional.
7. The applicants had also challenged the legality of the Provisional Legislative Council and thus of the No.2 and No.3 Ordinances that it had passed. The Court of Appeal addressed that issue in May 1998, affirming the Council's legality.
(b) Chan Kam-nga V Director of Immigration
8. The Immigration No.2 Ordinance stipulates, amongst other things, that in order for a child of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the HKSAR to be qualified for the right of abode, one of their parents must be a Chinese citizen and have acquired the right of abode at the time of the children's birth. In 1997, the parents of 81 children who were born in Mainland China before either of their parents had acquired the right of abode in Hong Kong applied for judicial review. They contended that the No.2 Ordinance was inconsistent with Article 24(2)(3) of the Basic Law, which did not specify that a parent must be a permanent resident at the time of a child's birth to acquire the right of abode. They also contended that the C of E Scheme was inconsistent with Article 24 of the Covenant in that the Scheme had the practical effect of separating the Mainland children in question from their parents and siblings.
9. Chan Kam-nga was one of the 81 children. Her case - which was the representative case for the group - was heard before the Court of First Instance in January 1998. The Court held that the provision under challenge was unconstitutional. The Government appealed and - in May 1998 - the Court of Appeal reversed that decision, ruling that the provision was consistent with the Basic Law.
10. All parties to these cases appealed against those decisions of the Court of Appeal that were not in their favour. The Court delivered its judgement on 29 January 1999. Among the several matters that it covered, the judgement gave rise to two questions of particular concern -
- first, the Court held that - under Article 24(2)(3) of the Basic Law - Mainland persons were eligible for the right of abode if either of their parents was a permanent resident at the time of their birth and - importantly - if either parent acquired permanent resident status after their birth;
- secondly, the Court held that Mainland residents who had the right of abode in Hong Kong under Article 24(2)(3) of the Basic Law were not bound by the requirement under Article 22(4) of the Basic Law to obtain from the Mainland authorities permission to enter Hong Kong for settlement.
11. After thoroughly reviewing the Court's decisions, we came to the view that the Court's understanding of Articles 22(4) and 24(2)(3) of the Basic Law might not truly accord with the legislative intent of those provisions. Our own understanding of that intent derived from a careful analysis of the documents relating to these articles and drafting history of the immigration laws that they affect. A practical - and disturbing - consequence of the judgement was the extension of the right of abode to a very large number of people: both in terms of absolute numbers and, more importantly, in terms of Hong Kong's physical capacity to absorb additional permanent population.
12. We carefully considered all options for resolving this problem, including seeking an amendment of the relevant provisions of the Basic Law and seeking an interpretation of those provisions. Both are lawful and constitutional options under the Basic Law. The power to amend the Basic Law is vested in the National People's Congress (NPC) of the People's Republic of China. The power of interpreting it is vested in the NPC's Standing Committee (NPCSC). We decided to seek an interpretation on the principle that there is a fundamental difference between an interpretation and an amendment. An interpretation is based on the true legislative intent of a provision. An amendment changes that legislative intent. Thus, in seeking an interpretation, we sought to clarify the true legislative intent of the relevant provisions, not to change that intent. The decision received the support of the Legislative Council in the Motion Debate held on 19 May 1999. And independent opinion polls demonstrated that 60% of respondents also supported it.
13. Article 48(2) of the Basic Law confers on the Chief Executive (CE) the constitutional responsibility for the implementation of the Basic Law. In view of the problems encountered in implementing the Basic Law in respect of Articles 22(4) and 24(2)(3) - and in the light of the exceptional circumstances discussed in paragraph 4 above - the CE asked the State Council to request the NPCSC to interpret the two articles in accordance with the legislative intent of the provisions. The NPCSC announced its interpretation on 26 June. The interpretation (text appended) made two things clear -
- first, under Article 24(2)(3) of the Basic Law, persons of Chinese nationality born outside Hong Kong are eligible for right of abode only if, at the time of their birth, at least one of their parents belongs to the category listed in Article 24(2)(1) or Article 24(2)(2) of the Basic Law. That is to say, generally speaking, he or she had been born in Hong Kong or had ordinarily resided in Hong Kong for seven years;
- secondly, the requirement under Article 22(4) of the Basic Law that Mainland residents must apply for approval from the Mainland authorities for entry into the HKSAR does apply to persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents.
14. Commentators have said that - by seeking an interpretation by the NPCSC - a non-judicial body - we have in some way undermined the rule of law. We understand why they should consider that this is so. But we profoundly disagree with their assessment. We have repeatedly affirmed - in the report and in other contexts - that the rule of law is the fundamental basis for the protection of human rights. We are firmly of the view that the actions we took were entirely consistent with the rule of law and we remain, as we always have been, wholly committed to the maintenance of the rule of the law and to the principles on which it is based.
15. It has also been asserted that the interpretation has removed the CFA's power of final adjudication and undermines judicial independence. But the NPCSC's interpretation did no such thing. Indeed, it made it abundantly clear that the CFA decision in regard to the cases in hand was and remains final. The Court's adjudication was not overturned. And the rights of the litigants were not affected. Thus, the interpretation does not interfere with the independence of Hong Kong courts in deciding cases in accordance with the law. Rather, as in certain civil law jurisdictions, it provides the Courts with an authoritative legislative statement of what the relevant lawmaking body (in this case, the National People's Congress) intended when it framed a particular law or provision within a law. It is then incumbent on the Courts - in accordance with the rule of law - to determine cases in accordance with that statement.
16. The concern has also been expressed that the decision to seek an interpretation bodes ill for the rule of law as it indicates that Government may seek such interpretations whenever a CFA decision is not to its liking. However, as our analysis in paragraphs 10 to 13 makes clear, the decision to seek an interpretation was taken in accordance with the law and was necessary in order to clarify the legislative intent of Articles 22(4) and 24 (2)(3) of the Basic Law and to address an objective problem of crisis proportions. The CE submitted his report to the State Council under Articles 43 and 48(2) of the Basic Law. The report set out the problems he had encountered in the implementation of the Basic Law and requested assistance for seeking the NPCSC's interpretation to resolve the problems. The SAR Government has pledged that it will not seek another interpretation by the NPCSC save in highly exceptional circumstances.
- According to the 'Explanations of Some Questions by the Standing Committee of the NPC Concerning the Implementation of the Nationality Law of the PRC in the HKSAR', where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People's Republic of China for having Chinese nationality, he is a Chinese national.
- Paragraph 7, Schedule 1 to the Immigration Ordinance (Chapter 115) - amendment of 1 July 1997.
- These are set out in paragraph 6 of Schedule 1 to the Immigration Ordinance and in Articles 5 and 6 of "Explanations of some questions by the Standing Committee of the National People's Congress concerning the Implementation of the Nationality Law of the People's Republic of China in the HKSAR".
- This introduced into Schedule 1 of the Immigration Ordinance (Chapter 115) the provision that the relationship of parent and child is taken to exist as follows-
- of a mother and child, between a woman and a child born to the mother in or out of wedlock;
- of a father and child, between a man and a child born to him in wedlock or, if our of wedlock, between a father and a child subsequently legitimated by the marriage of his parents;
- of a parent and adopted child, between a parent and a child adopted only in Hong Kong under an order made by a Court in Hong Kong under the Adoption Ordinance (Cap.290C)