The Bar's Views on the Right
of Abode CasePress Release
16 May1999
SOLUTIONS TO THE PROBLEMS OF MASS IMMIGRATION
The Government has not so far announced what, if any, immigrational measures will be undertaken to avert a population explosion. In a meeting held on Saturday, 15th May 1999 with the Chief Executive, members of the Bar had made a number of proposals to the Government to regulate the orderly intake of those who choose to exercise their right of abode. The Bar sincerely hopes that the Government will actively explore the practicability of such measures as a means to avoid a reference of the Basic Law to the Standing Committee of the NPC for "re-interpretation".
1. ORDERLY INTAKE OF THOSE WITH THE RIGHT OF ABODE
It is the decision of the Court of Final Appeal that the Government should set up a reasonable scheme to verify the status of mainlanders who claim the right of abode in Hong Kong and to issue them with Certificates of Entitlement. Offices for this purpose should be set up on the mainland as soon as practicable.
The Government should explore ways to encourage those who qualify for the right of abode to delay the exercise of that right. At present those issued with a one-way permit are spurred on to leave since the permit has an expiry date after which it cannot be renewed and once the individual leaves under the one-way permit, he would lose his household registration and entitlement to social benefits on the mainland.
The Government should work towards securing the co-operation of the mainland authorities so that those issued with a Certificate of Entitlement can retain their social benefits on the mainland unless and until they decide to leave for settlement in Hong Kong. In the meantime, they should be allowed to come and go as they please.
2. A POINTS-SYSTEM FOR PROCESSING CERTIFICATE OF ENTITLEMENT
The Government could also explore the possibility of setting up a points-scoring scheme for potential applicants.
Priority could be given to those seeking family re-union and other compassionate grounds. Points-scoring could also be made to depend on age, marital status, the level of skills, etc...
3. CONDITIONS FOR ORDINARY RESIDENCE
If a person claims to qualify as a permanent resident of the HKSAR under Article 24(3) by virtue of either of his parents being a permanent resident under Article 24(2), a pre-condition which needs to be satisfied is that his parents should have ordinarily resided in Hong Kong for the requisite period.
Ordinary Residence is a common law concept which involves more than mere physical presence. There has to be intention and a pattern of habitual residence forming part of a person's settled way of life.
Currently, section 2(4) of the Immigration Ordinance, Cap. 115 excepts from the definition of ordinary residence those working in Hong Kong on contract under a Government importation of labour scheme and foreign domestic workers.
The Government may wish to make it clear as a matter of policy (and if necessary by legislation) that those who are in Hong Kong for a temporary purpose (e.g., studying or working) would not be regarded as ordinarily resident in Hong Kong.
4. LONG-TERM SOLUTIONS
The measures suggested above should to some extent alleviate the threat of an immediate or sudden massive influx of mainlanders to Hong Kong.
In the long-term, the only acceptable solution would be to introduce amendments to the Basic Law to make it clear that Article 24(3) can only benefit those born after one of their parents have fulfilled the qualification for permanent residence.
For further enquires, please contact Mr. Alan Leong, SC at 2526 6182 for English and Mr. Johannes Chan at 2859 2935 or Mr. Ambrose Ho at 2524 2156 for Chinese.
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