Applying the Right to Family in the Immigration Context of Hong Kong

Karen Kong

The University of Hong Kong

Applying the Right to Family in the Immigration Context of Hong Kong

On 4 April 2019, Children’s Day, the Hong Kong Court of Final Appeal (‘CFA’) delivered the judgment of Comilang, Milagros Tecson & Anor v Director of Immigration [2019] HKCFA 10, but it was by no means a day for celebration for the children involved in this case. The combined appeals were brought by two families. In each case, the appellants included a non-resident mother who was an ex-foreign domestic helper with no right of abode or right to remain in Hong Kong, and her Hong Kong resident or permanent resident minor child(ren). Both mothers were refused application for an extension of stay in Hong Kong to take care of their children. The issue was whether the Director of Immigration had a duty to take into account the family rights of the children and their non-resident mothers with no right to remain in Hong Kong, when considering whether to grant the mothers permission to stay in Hong Kong and be with their children.

The parent appellants argued that they and their children enjoyed a right to family under: (i) Art 37 of the Basic Law (the mini-constitution of Hong Kong), (ii) Arts 14, 19(1) and 20(1) of the Hong Kong Bill of Rights (BOR) which incorporates the International Covenant on Civil and Political Rights (ICCPR), (iii) Art 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and (iv) Art 3 of the Convention on the Rights of the Child (CRC). Thus, it was argued, the Director of Immigration had a legal obligation to take into account such rights when considering their applications.

The CFA ruled against the appellants on all grounds. The Court applied the immigration exception in the Hong Kong Bill of Rights Ordinance (‘HKBORO’) to limit the rights enjoyed by the appellants. As a result, non-resident mothers enjoy very limited human rights protection under the BOR, the Basic Law and other human rights Covenants in the application of immigration legislation in Hong Kong.

The Immigration Reservation to the ICCPR

The limitation of rights in the immigration context is laid out in the HKBORO, which was enacted in 1991 in Hong Kong as a domestic incorporation of the ICCPR. Part II of the HKBORO includes the BOR which sets out the rights in the ICCPR. Section 11 of the HKBORO is an immigration exception which mirrors the Reservation made by the United Kingdom upon its accession to the ICCPR, and which was extended to its dependent territories. It precludes the BOR from affecting ‘any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation’, as regards persons without the right to enter and remain in Hong Kong.

The HKBORO was given constitutional force after 1997 by virtue of Art 39 of the Basic Law which states that the ICCPR ‘as applied to Hong Kong shall remain in force’ (Ubamaka v Secretary for Security (2012) 15 HKCFAR 743). Section 11 of the HKBORO operated at the constitutional level to preclude non-resident parents from relying on the right to family under the BOR in the immigration context.

How the Reservation Extended to the Basic Law

In relation to constitutional rights, the parent appellants argued that they enjoyed family rights arising from Art 37 and Art 41 of the Basic Law. Article 37 of the Basic Law concerns the right of Hong Kong residents to raise a family freely, while Art 41 of the Basic Law extends the rights protecting residents in the Basic Law to non-residents ‘in accordance with law’. These rights should not be affected by any restriction or limits in the HKBORO. In other words, section 11 of the HKBORO should not have a ‘spill over effect’ to the rights in the Basic Law.

However, relying on Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, the CFA ruled that “the exception created by the immigration reservation… is not confined in its operation to rights in the BOR but extends by necessary implication to cognate rights in the Basic Law, requiring them to be interpreted consistently with section 11 as laying down a coherent scheme in the specified immigration context” (emphasis added). Therefore, the application of Art 41 of the Basic Law was found to be qualified by section 11 of the HKBORO, operating at the constitutional level.

The appellants further contended that, based on Art 2(5) of the BOR, the Basic Law rights should not be ‘read down’ by section 11 of the HKBORO. Art 2(5) of the BOR, which reflects Art 5(2) of the ICCPR, states that the HKBORO cannot restrict or derogate from the ‘fundamental rights recognised or existing in Hong Kong pursuant to law’ on the pretext that the BOR recognised such rights to a lesser extent.

The CFA rejected this argument and stated that Art 2(5) of the BOR and section 11 of the HKBORO should not be regarded as mutually inconsistent provisions. The rights under the Basic Law and the BOR should be interpreted as a coherent scheme. ‘Rights recognised or existing in Hong Kong’ conferred by the Basic Law should be interpreted as rights qualified by section 11 of the HKBORO in the immigration context. In other words, it was not a case where a provision, with lesser rights protection, in the BOR was used to restrict or derogate from a provision in the Basic Law, with wider rights protection.

Resident Children’s Family Rights Non-Applicable

In this case, the resident children could not rely on their right to family under the BOR and the Basic Law or the right to abode under the Basic Law to challenge the Director of Immigration’s decision not to grant an extension of stay to their non-resident mothers, as the children’s rights were also limited by section 11 of the HKBORO when applied to the immigration decision regarding their mothers. If non-resident mothers could not rely on their rights, they could not rely on their resident children’s rights to challenge the immigration decision (In re Hai Ho Tak v Cheng Chun-heung [1994] 2 HKLR 202).

ICESCR and CRC  

Unlike the ICCPR, the ICESCR and the CRC had not been fully incorporated in Hong Kong via a single constitutionally entrenched Ordinance. As Hong Kong is a dualist jurisdiction, unincorporated treaties do not have domestic force of law. The Court was of the view that, even if the relevant provisions of the ICESCR and the CRC were said to be incorporated via the corresponding provisions in the Basic Law, those rights were subject to section 11 of the HKBORO, and so the ICESCR and the CRC could not give greater rights protection than that afforded under the Basic Law.

The Rbhani Formula for Subtraction of Rights

As seen above, section 11 of the HKBORO was given tremendous effect over the BOR, Basic Law, ICESCR and CRC. The immigration exception in the HKBORO was extended by necessary implication to trim all other cognate rights in the constitution and those protected by applicable international treaties. This expansive way of interpreting the effect of the section 11 immigration exception was beyond the original intention of the provision to operate within the framework of the HKBORO.

To create a consistent rights framework for the Basic Law and the BOR, the Court leveled down the corresponding rights provisions in the Basic Law which could reasonably be interpreted to grant greater protection than the BOR. As there was no express immigration exception in the Basic Law, and it is arguable that there was no clear intent by the drafters of the Basic Law to adopt a subtraction formula to subject Basic Law rights to the limitation of section 11 of the HKBORO. A plausible alternative would have been for the Court to adhere to the principle of generous interpretation of rights and narrow interpretation of limitations, and to consider the applicable international human rights standards as an extrinsic interpretive tool, in order to determine the proper scope of the Basic Law rights.

Immigration has always been under strict control in Hong Kong. The CFA in GA v Director of Immigration (2014) 17 HKCFAR 60 stated that Hong Kong had considerable economic attraction to many people, therefore it could easily be seen that there was a need to control immigration. Given the judicial deference to the strict immigration control policy adopted in Hong Kong, it is not surprising that the CFA opted for the more restrictive interpretation. This case highlighted some family problems facing foreign domestic helpers who are single parents with children in Hong Kong. Foreign domestic helpers are not entitled to the right of abode by virtue of working in Hong Kong for a fixed number of years. They are subject to the requirement to leave Hong Kong within two weeks after the termination of their employment. If they have children who are Hong Kong residents, their family rights will not be taken into account when they apply to remain in Hong Kong to be with their family. Applicants can only hope that the immigration authorities would grant an extension of stay justified by exceptional circumstances on humanitarian or compassionate grounds.

Karen Kong is a Senior Lecturer at the Faculty of Law, The University of Hong Kong, where she is the Deputy Director of the LLM in Human Rights Programme.

Suggested Citation: Karen Kong, ‘Applying the Right to Family in the Immigration Context of Hong Kong’ IACL-AIDC Blog (19 June 2019) https://blog-iacl-aidc.org/membership-and-exclusion/2019/6/18/applying-the-right-to-family-in-the-immigration-context-of-hong-kong