Hong Kong is undeniably a “city of immigrants”. Growing from a fishing village with a population of 7,500, to an 8-million-person metropolis, over past 150 years people of many different origins have chosen to make Hong Kong their permanent or temporary home.
Hong Kong SAR Government continues to implement dynamic immigration policies that play a crucial role in enhancing its attractiveness to foreign professionals and investors as well as being an important location for temporary skilled labour, including construction workers or domestic helpers.
However, Hong Kong’s small geographical size, large population, and its economic and social uniqueness amongst its neighbours, mean that such policies must also be somewhat restrictive so as to maintain sustainability.
Article 154(2) of the Basic Law and the Immigration Ordinance (Cap.115) put the administration of such policies in the hands of the Director of Immigration, who has a very wide discretion to discharge his heavy responsibilities. Such a wide discretion is deemed necessary because often the Director has to make hard decisions based on the macro circumstances and needs of Hong Kong, some of which might be regarded as tough and unpopular.
The rule of law and the power of Hong Kong Courts
Controversially, it has been held that it is not appropriate for the courts to usurp the role of the Director because the courts do not and cannot have a macro picture of the overall immigration pressures on Hong Kong or the expertise to assess the potential political and socio-economic impact of a shift in the immigration policy (no matter how minor it is).
This does not mean that the Director is above the law. The courts retain a supervisory jurisdiction over the Director’s powers so that the courts will ensure the Director’s exercise of power does not contravene the legal rights of the people protected by way of the Basic Law, the Hong Kong Bill of Rights or common law.
The courts can also examine whether the Director exercises the power in accordance with the relevant legislation. The courts can examine whether the Director acts in accordance with his own policy instead of misconstruing the same. Related to this principle, if the Director fails to take relevant considerations, that he is legally required to consider, into account, his decisions may be challenged as invalid. Likewise, if the Director takes into account irrelevant considerations, his decision may well be vitiated.
Further, the court can also intervene if the Director does not act fairly in the decision-making process. This is the principle of fairness. The requirement of fairness can call for intervention by the courts when the Director did not exercise independent judgment in the administration of a policy adopted voluntarily by him. Yet further, in an extreme case where the Director makes a decision which in public law terms can be described as Wednesbury unreasonable, the court can also interfere on the principle of rationality.
Bill of Rights and humanitarian decisions
A very important consideration in the application of the principle of legality in the Hong Kong immigration context is the immigration reservation at section 11 of the Hong Kong Bill of Rights Ordinance (“HKBORO”). The ‘immigration reservation’ provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong or the application of such legislation. This reservation is constitutionally entrenched by Article 39 of the Basic Law.
As discussed in a long line of cases, the Bill of Rights and the Basic Law do not give an applicant who has no right to stay in Hong Kong any right to pre-empt a decision by the Director in not granting him or her a right to remain in Hong Kong. It is also established that a family member (who has the right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Hai Ho Tak v Attorney General; Santosh Thewe v Director of Immigration.
When an applicant cannot bring himself/herself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he/she may do so. If he/she did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration.”
Our team at Hugill & Ip has extensive experience in dealing with Immigration issues – so if you need further advice on this subject, get in touch with us.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.