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Immigration changes: what we know so far

By Colin Cohen

Hong Kong, 24 May 2021: Amendments to Hong Kong’s immigration regulations have attracted much comment and are worthy of detailed analysis. In particular, new powers granted to the Director of Immigration are being queried by human rights lawyers and refugee NGOs, concerns which the government has robustly dismissed.

The Immigration (Amendment) Bill 2020 was introduced with a view to improving the screening procedures for non-refoulement claims and introducing enhanced measures towards asylum seekers in respect of law enforcement, removal and detention. The bill was passed by the Legislative Council by a 39-2 vote last month, the margin being a reflection of last year’s high-profile disqualifications and resignations which left the legislature devoid of an effective opposition bloc. The new laws will take effect on 1 August.

The government feels there is widespread abuse of Hong Kong’s non-refoulement claims system, which enables asylum seekers to challenge being returned to a place where they believe they may be persecuted. All claimants go through the government’s Unified Screening Mechanism and anyone who has their claim rejected can take their case to the Torture Claims Appeal Board.

The caseload is heavy, made worse by the Covid-19 pandemic. According to Immigration Department statistics, at the end of March this year there were 960 claims pending completion of screening and a further 600 cases where the screening procedure had yet to start. Only 1% of claims are successful. In the past 11 years, the Hong Kong authorities have assessed 23,299 torture and non-refoulement claims with just 249 being substantiated.

The amended regulations contain some notable points: immigration officers will be allowed to carry guns and steel batons at a detention centre for immigrants; in certain cases, claimants may be denied access to interpreters; and claimants may be required to undergo further medical examination if officers choose to disregard outside medical reports.

But the most contentious part of the bill empowers the Secretary for Security to make subsidiary legislations. The first of these gives the Director of Immigration the right to request travellers’ information from airlines; the second grants the Director of Immigration power to decide whether “a passenger or a member of the crew of a carrier may or may not be carried” on a given vessel.

The government insists the former provision fulfils Hong Kong’s obligation under the Convention on International Civil Aviation to implement the so-called Advance Passenger Information (API) system. This relatively new protocol requires airlines to provide, before a flight, passenger and crew member information to immigration authorities.

The aim is to enhance civil aviation safety and give immigration officials worldwide more effective control over who enters their jurisdiction. So far, more than 90 countries have put the API system in place, including European Union member states, the US, Canada and Australia.

Hong Kong’s government says the measures will strengthen its ability to prevent potential non-refoulement claimants from entering the territory and will only apply to inbound flights. The administration has reacted sharply to what it calls “deliberate dissemination of false information and intentional misinterpretation”. In particular, the Hong Kong Bar Association expressed concern that the amended law would give the Director of Immigration an “apparently unfettered power” to prevent Hong Kong residents and others from leaving the territory.

Secretary for Security John Lee has reiterated the arrangement will only target flights to Hong Kong, not those departing the city, and that this will be clearly stated in forthcoming subsidiary legislation. “The freedom of Hong Kong people to travel will not be affected,” he has told the media, adding that the measures will comply with the Basic Law and Bill of Rights, both of which guarantee residents’ freedom of movement.

It is reasonable to observe that changes in Hong Kong’s legal and political landscape in the past two years have led to increased scrutiny of government actions. With the new laws due to take effect in just two months, we await the subsidiary legislation with interest.

Co-founder of BC&C in 1985 and Senior Partner since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. He can be contacted at colin@boasecohencollins.com.

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