Court/Judicial body:Hong Kong Court of Appeal
Date:April 2, 1998 CRC
Provisions:Convention of the Rights of the Child (general reference)
Other international provisions:International Covenant on Civil and Political Rights, Articles 12 and 15Vienna Convention on the Law of Treaties, Article 31
Domestic provisions:Hong Kong Basic Law, Articles 22(4), 24, 31 and 39.Immigration Amendment (No.2) Ordinance 1997 (“No. 2 Ordinance”); Immigration Amendment (No.3) Ordinance 1997 (“No. 3 Ordinance”)Joint Declaration 1984; Immigration Ordinance Registration of Persons Regulations Hong Kong Bill of Rights, Articles 8(4) and 12
Background:Following the hand-over of Hong Kong from the United Kingdom to China, the latter introduced a number of new immigration measures for Chinese citizens to establish the right to live in Hong Kong. While Chinese national children of Hong Kong permanent residents have the right to reside in the territory under the Hong Kong Basic Law, one of the new measures – the No. 3 Ordinance – would deem children of Hong Kong residents born outside the territory to be illegally present in Hong Kong and force them to leave Hong Kong and prove their eligibility to reenter as residents from mainland China. Another – the No. 2 Ordinance – sought to exclude children of male Hong Kong permanent residents born out of wedlock outside of Hong Kong. A number of children affected by the new measures sued to challenge their validity.
Issue and resolution:Immigration; discrimination. The Court upheld the new immigration requirements relating to the reestablishment of eligibility for Hong Kong permanent residency for those who entered Hong Kong after the No. 3 Ordinance went into effect, but struck down as discriminatory the provision denying residence to children born out of wedlock outside of Hong Kong with Hong Kong permanent resident fathers.
Court reasoning:The No. 3 Ordinance establishes the conditions for lawful Hong Kong residency and is not an unconstitutional restriction on the right to live in the territory. However, the ordinance cannot be applied retroactively to children born abroad to Hong Kong permanent residents who were present in Hong Kong at the time it took effect. Among other things, this would potentially violate the Hong Kong Bill of Rights and the International Covenant on Civil and Political Rights. The No. 2 Ordinance’s denial of residency to children born outside of Hong Kong with Hong Kong permanent resident fathers is unconstitutional. These children are end to Hong Kong residency under the Hong Kong Basic Law, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child regardless of whether their parents were married at the time they were born.
Excerpt citing CRC and other relevant human rights 53. Article 15 of the [International Covenant on Civil and Political Rights “ICCPR”] arises in relation to a defence to a criminal prosecution or the finding of criminal activity but there is no question of criminality involved. It is further argued that since the right contained in Article 24(3) is always qualified by the requirement for the compliance of PRC laws and Article 22(4), there is no question of affecting the Applicants’ accrued rights. … 64. I agree with Mr Chang’s arguments that although the penal sections (sections 2AG and 5) of the No.3 Ordinance do not have retrospective effect, however, the result of saying that these appellants do not have the right of abode in Hong Kong even though they are here is that they have unlawfully landed and/or have remained unlawfully in Hong Kong, according to Hong Kong immigration laws. The Hong Kong courts cannot of course punish the appellants for any breach of the PRC immigration laws. Article 22(4) does not provide for any criminal sanction. But it is quite clear that the retrospective provision of the No.3 Ordinance has resulted in these appellants being considered as having committed at least two offences. What is more, they are under the provisions of the Immigration Ordinance liable to be detained, arrested, prosecuted and removed from Hong Kong. I do not think I can agree with the interpretation of the learned judge on the provisions of Article 12 of the ICCPR. It is not a matter of defence. It is a matter of substance. Apart from the fact that they can also be prosecuted (and whether they can be convicted is another matter), these appellants can be excluded from Hong Kong. The retrospective provision of the No.3 Ordinance is, in my view, clearly contrary to Article 12 of the ICCPR. … 67. Counsel also submits that the UN Convention on the Rights of the Child does not assist the appellants. In that Convention, it is stated that the United Kingdom has expressly reserved its right with regard to its immigration laws. This reservation still applies to Hong Kong as a result of the adoption of the Convention by the Chinese Government. (See the letter of 10th June 1997 from the UN Secretary-General.) It is submitted that because of this reservation, it is permissible to have wild powers within the framework of the Basic Law to legislate policy and to legislate provisions such as those in the No.2 Ordinance. Counsel submits that reference to the nationality law of the PRC (which does not differentiate between a legitimate and an illegitimate child) does not assist in the present case which deals with the question of the permanent resident’s status or right of abode and not the acquisition of Chinese nationality. In any event, it is argued that the No.2 Ordinance refers to a child born in wedlock and not to legitimacy which is irrelevant. … 69.
With regard to the reservation in the UN Convention on the Rights of the Child, counsel points out that the reservation refers only to a reservation of the right of the UK Government to apply its own immigration laws to those who do not have the right under the law to enter and remain in the UK. This means that the UK undertook to respect the rights of all children with the appropriate right of abode status but reserved the right to legislate through its nationality laws with regard to the acquisition of that status by those who do not have such right. It is submitted that such reservation cannot apply to the Hong Kong situation. This is because Hong Kong does not confer nationality through any of its laws. It is further submitted that the paragraph 1(2)(b) does not only create differential treatments. It is a discrimination which cannot be justified in that it contravenes Articles 2 and 26 of the ICCPR which guarantee the enjoyment of rights and equality before the law on a non-discriminatory basis. Counsel says it is discriminatory in two ways : between legitimate and illegitimate children on the basis of the status of a parent at birth and discrimination between illegitimate children of the father and mother. This is an arbitrary deprivation of right. … 74. For the arguments put forward by Mr Chang, I also take the view that the reservation by the UK in the UN Convention on the Rights of the Child applies to immigration legislation intended to affect persons without any right under the law in the first place and does not apply to any legislation which tries to affect persons who have the right of abode. Hence, the Convention applies. It is clear that paragraph 1(2)(b) is discriminatory and is in contravention of the Convention as well as the ICCPR (which is also reflected in the Bill of Rights) regarding equality before the law irrespective of status.
CRIN comments:CRIN believes this decision is consistent with the CRC. As recognised by the Court, laws should not discriminate against children born out of wedlock with regard to immigration or any other matters. In addition, it would not seem to be in keeping with the spirit of the Convention to force children who are otherwise residing lawfully in a country to leave and reenter that country merely to verify their immigration status.
Citation: HKCA 457, CACV203/1997 (2 April 1998)
Link to full judgement: http://www.hklii.hk/eng/hk/cases/hkca/1998/457.html