Court/Judicial body: Hong Kong Court of Final Appeal
Date: 20 July 2001 CRC
Provisions: Article 20: Protection of a child without family Article 21: Adoption
Other international provisions: International Covenant on Civil and Political Rights, Article 23 International Covenant on Economic, Social and Cultural Rights, Articles 10 and 11
Domestic provisions: Hong Kong Basic Law, Article 24 (permanent residency) Adoption Ordinance, Section 17 (overseas adoption) Hong Kong Bill of Rights, Article 19(1) (protection of family)
Case summary
Background: Under Article 24 of the Hong Kong Basic Law, Chinese citizen children of permanent residents of Hong Kong born outside the territory are generally end to live in Hong Kong. Three children born and separately adopted in mainland China by Hong Kong permanent resident parents were denied permission to enter Hong Kong, and sued the Director of Immigration claiming their right to reside in Hong Kong.
Issue and resolution: Immigration; adoption. While the protection of the family and the rights of adopted children must be taken into account, the Court held that the adopted children did not have the right to reside in Hong Kong.
Court reasoning: Article 24 of the Hong Kong Basic Law grants the right of residency to “[p]ersons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)”. The Court held that it was clear from this language (“born…of”) that only natural born children of Hong Kong permanent resident parents were end to live in the territory. As such, children born and adopted outside Hong Kong do not have the right to enter Hong Kong.
Dissenting opinion: The legislation could be interpreted to include adoptive parent and child relationships, and the Court should apply that interpretation as it would be consistent with protection of the family and rights of adopted children.
Excerpt citing CRC and other relevant human rights 25. As has been noted, the [International Covenant on Civil and Political Rights] was implemented in Hong Kong through the Bill of Rights. Article 19(1) incorporating art. 23(1) of the ICCPR provides : “The family is the natural and fundamental group unit of society and is end to protection by society and the State.” This Article will be referred to as “art. 19(1) of the Bill of Rights”. 26. Ms Gladys Li SC for the two appellants, Tam Nga Yin and Chan Wai Wah, whose submissions are adopted by Mr Patrick Szeto for the appellant, Xie Xiaoyi, points out that adoption is a beneficial institution. (This is not disputed by the Director.) She submits that great weight must be paid to art. 19(1) of the Bill of Rights when approaching interpretation. She also refers to arts 10 and 11 of the International Covenant on Economic, Social and Cultural Rights and arts 20 and 21 of the Convention on the Rights of the Child. But she accepts that these articles do not add materially to art. 19(1) of the Bill of Rights for the purposes of her argument. Ms Li SC contends that interpreting art. 24(2)(3) as covering adopted children would promote family union and would be consistent with art. 19(1) of the Bill of Rights whereas the contrary interpretation would split the family and would be inconsistent with it. She points out that in Ng Ka Ling (at 41), the Court, applying this approach, held that children born out of wedlock are within art. 24(2)(3) and the Standing Committee was not asked to interpret the Article in relation to that question. Ms Li SC went so far as to submit that the weight which should be given to promoting family union consistently with art. 19(1) of the Bill of Rights is so great that art. 24(2)(3) should be construed as covering adopted children unless the Article contains express words excluding them.
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Where a State provides for adoption, children who have been adopted should be treated without discrimination or prejudice in all matters as in line with Article 2 of the Convention. This undoubtedly includes immigration status, and, contrary to the Court’s interpretation, adopted children should not be denied legal residency merely because they have been born elsewhere.
Citation: [2001] HKCFA 53; [2001] 2 HKLRD 644; (2001) 4 HKCFAR 251
Link to Full Judgment: http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2001/53.html?ste…