Court/Judicial body: Hong Kong Court of First Instance
Date: February 18, 2008 CRC
Provisions: Article 22: Refugee children
Other international provisions: 1951 United Nations Convention Relating To The Status of Refugees and its 1967 Protocol ( Article 33: prohibition against refoulment – expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened);Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( Article 3: prohibition against refoulment where there are grounds for believing the person would be in danger of being subjected to torture);Universal Declaration of Human Rights ( Article 14(1): everyone has the right to seek and to enjoy in other asylum from persecution).
Domestic provisions: Immigration Ordinance
Case summary
Background: Six refugee claimants, including one under age 18, had been denied refugee status by the Hong Kong sub-office of the United Nations High Commission for Refugees (UNHCR). In practice, persons recognised as refugees by the UNHCR would not be repatriated by the Hong Kong government. The claimants asked the Court to declare that: (a) the Hong Kong government has an obligation under customary international law not to expel a refugee to any territory where he or she would face persecution on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and (b) as part of that obligation, the Hong Kong government cannot rely only on UNHCR and must independently determine the status of all refugee claimants before deciding whether to direct their removal from Hong Kong.
Issue and resolution: Immigration; refugee status. The Court held that the customary international law prohibiting the removal of refugees does not apply in Hong Kong, and that the Hong Kong government may allow another body, such as the Hong Kong sub-office of the UNHCR, to determine the status of refugee claimants so long as it does not commit to be bound by that body’s decisions. Therefore, the failed refugee claimants may be lawfully deported from Hong Kong.
Court reasoning: The Court accepted that there is a universal rule of customary international law which prohibits the return of refugees to where they would face persecution, but that rule is not absolute. Hong Kong has consistently refused to accept this rule, which runs contrary to Hong Kong law and hence has not been incorporated into national legislation. In addition, a reservation has been entered to the CRC’s Article 22 in relation to the protection to refugee children which states that Hong Kong immigration law may deviate from internationally accepted standards.
Excerpt citing CRC and other relevant human rights 4. Hong Kong has never had the Refugee Convention extended to it. In consequence, there is no domestic legislation requiring the screening of persons who claim to be refugees nor the granting of asylum to those whose claims are accepted. As to why this is so, in a paper presented to the Legislative Council Panels on Security and Welfare Services in July 2006, the Government gave the following explanation: “Hong Kong is small in size and has a dense population. Our unique situation, set against the backdrop of our relative economic prosperity in the region and our liberal visa regime, makes us vulnerable to possible abuses if the [Refugee Convention] were to be extended to Hong Kong. We thus have a firm policy of not granting asylum and do not have any obligation to admit individuals seeking refugee status under the [Refugee Convention.]” 11. This practice on the part of the Director mirrors what has been codified in the Refugee Convention. Art.33(1) of the Convention contains a prohibition against refoulment; that is, a prohibition against expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened. The Article reads: “No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 31. While the Refugee Convention has not been extended to Hong Kong, the Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment or Punishment (‘the Convention Against Torture’) has been extended and therefore applies. The Convention Against Torture also incorporates the rule of non-refoulment. Art.(3) reads : “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 144. The 1989 Convention on the Rights of the Child has been extended to Hong Kong. Art.22(1) of the Convention reads: “States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.” 145. The Convention, however, remains subject to the following reservation: “The Government of the People’s 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 to enter and remain in the Hong Kong Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time.” 146. The legislation that is applied is the Immigration Ordinance. That statute, however, does not contain any special provision regarding refugee claimants in general or persons under 18 who claim the same status. Accordingly, both adult and child claimants are subject to the general provisions of the Ordinance, including provisions which go to removal and deportation. 147. As I have indicated earlier, the applicant, AK, may have been under the age of 18 when he came to Hong Kong. But, as I have said, in respect of immigration matters, the Convention on the Rights of the Child has not been incorporated into Hong Kong’s domestic law. In this regard, in an earlier judgment – Chan To Foon v. Director of Immigration [2001] 3 HKLRD 109, at 121 – I said: “In my judgment, the voice of those responsible for entering into 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.”
Notes: The full text of China’s reservation to the CRC in relation to Hong Kong reads: “The Government of the People’s 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 HKSAR of those who do not have the right under the laws of the HKSAR to enter and remain in the HKSAR, and to the acquisition and possession of residentship as it may deem necessary from time to time.”
Follow up: The decision was upheld by the Court of Appeal in C v. Director of Immigration [2011] HKCA 159. The CRC was not discussed.
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Children seeking refugee status have the right to have these matters considered fully under Article 22 of the Convention, and China should withdraw its reservation to this Article to ensure that refugee children enjoy the full protection to which they are end.
Citation: [2008] HKCFI 109; [2008] HKEC 281 Link to Full Judgment: http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2008/109.html?stem=&synonyms=&query=(c%20and%20director%20of%20immigration)&nocontext=1 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. Related 1967 Protocol relating to the UN Convention on the Status of RefugeesUN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentUN Convention relating to the Status of RefugeesUniversal Declaration of Human Rights Countries Hong Kong, Special Administrative Region of China