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Link to UNCHR
(E/CN.4/2001/NGO/62)
COMMISSION ON HUMAN RIGHTS
Fifty-seventh Session
Item 6 of the Provisional Agenda
RACISM,
RACIAL DISCRIMINATION, XENOPHOBIA
AND
ALL FORMS OF DISCRIMINATION
Written
statement submitted by the Asian Legal Resource Centre
a
non-governmental organization with general consultative status
Discrimination
against new immigrants from Mainland China in Hong Kong SAR
1.
Every year there about 54,000 new immigrants from Mainland China
arrive in Hong Kong, representing nearly one percent of its total
population. The Hong Kong Special Administrative Region (HKSAR)
Government has not yet introduced any new population or immigrant
policy to guide this flow. Neither is there any social or
economic policy to address the needs of these newcomers. The lack
of affirmative action towards these new arrivals not only hinders
their equal participation, but also contributes to the building
of social tension in the community.
2.
New immigrants have been made the scapegoats of incompetent
government actions designed to improve the living standard of
poor people during times of economic recession. They have been
blamed for increasing the taxpayers' burden and competing
for social resources with locals. Negative public opinion has
become an excuse for the government to neglect the needs of new
immigrants. Most new immigrants are women and children who come
to Hong Kong for family reunions. The main source of their
problems is unfair and discriminative social policies:
a.
Housing Policy: Hong Kong housing rentals are the third most
expensive in the world. New immigrants are desperately in need of
subsidised housing. They suffer great financial hardships and can
only afford to live in old and dilapidated private tenements,
usually sharing a unit with 8 to 10 other families or with dozens
of other dwellers in a cage-home. These immigrant families can
only pin their hopes for improved living conditions on public
housing. However, the HKSAR Government applies a residence rule
when allocating public housing that discriminates against new
immigrant families. This rule stipulates that more than half of a
household must have resided in Hong Kong for at least seven years
before public housing will be allocated to them. As most new
immigrant families cannot meet with this criterion, they have to
wait for years in order to improve their living conditions.
b.
Education Policy: Despite a majority of new immigrants from
Mainland China being of school-age, the government has not
developed a comprehensive policy to help them to integrate into
the Hong Kong education system and society. Many have
difficulties in finding a place in schools and in adjusting to
the new environment. Although education is supposed to be free
and compulsory for every one in Hong Kong aged between 6 and 15,
many immigrant children have been denied entry to local schools
due to inadequate arrangements of the Education Department and
discriminatory attitudes of the schools.
For those above 15, the Education
Department even refuses to provide any assistance in securing a
school place. It only recommends young immigrants above 15 study
at evening schools or take adult courses, although most of them
are very keen to continue their education in the regular
secondary schools. Many of them can only find placements in
private schools or simply give up studies. This is likely to
create a self-fulfilling prophecy that new immigrants are of a
lower education standard and cannot integrate into the society.
But in fact this is an outcome of deficient social policies.
c.
Social Welfare Policy: As Hong Kong's economy continues to
be gloomy, many new immigrant families encounter economic
difficulties, but are not entitled to apply for public
assistance. As with housing and education policies, the newcomers
are denied equal access to social security. To be eligible for
public assistance, the applicant must have resided in Hong Kong
for over a year. The policy keeps the needy new immigrants
distant from the provision of social welfare and makes life
difficult for elderly new arrivals and their families.
3.
The HKSAR Government must take affirmative measures to remove
these discriminatory treatments against new immigrants from
Mainland China within their polices on education, housing, and
social welfare.
4.
The second major area of concern is the denial of the right of
abode to Mainland-born children of Hong Kong permanent residents.
Articles 24(2) and (3) of the Basic Law stipulate that Chinese
citizens who have ordinarily resided in Hong Kong for a
continuous period of not less than seven years before or after
the establishment of the HKSAR, and their children of Chinese
nationality born outside Hong Kong, shall all be permanent
residents. However, the HKSAR Government has deprived this right
of abode for the Mainland-born children of Hong Kong permanent
residents. At the change of sovereignty, the first few pieces of
legislation passed by the Provisional Legislature of the HKSAR
amended the Immigration Ordinance to make people residing in
Mainland China a restricted category and the exercise of their
rights a matter subject to control by the administration. The
Immigration (Amendment) (No. 3) Ordinance requires that
Mainland-born children who claim the right of abode must attach a
valid Certificate of Entitlement to a one-way permit before they
can settle in Hong Kong. However the Mainland authorities set a
quota of 150 one-way permit entries per day. In other words,
without getting one-way permits under this restrictive
immigration scheme, these children cannot attain their right of
abode in Hong Kong.
5.
This newly enacted legislation clearly discriminates against the
Mainland-born children of Hong Kong permanent residents. There is
no quota limit for the children of Hong Kong permanent residents
who are born outside Hong Kong and Mainland China. These children
can enter Hong Kong using travel documents or passports issued by
the country where the children are born. They are allowed to
apply for the Certificate of Entitlement at the Hong Kong
Immigration Department directly, either in Hong Kong or by mail,
and can remain in Hong Kong while the Immigration Department
verifies their application.
6.
A series of litigation cases challenged the legality of these
amendments. On January 29, 1999, the Court of Final Appeal (CFA)
ruled that the amended ordinance requiring the Certificate of
Entitlement to be attached to the one-way permit is
unconstitutional and therefore null and void. However, the HKSAR
Government declared that the CFA judgment would lead to insoluble
problems arising from a mass influx of immigrants from the
Mainland. Instead of respecting and implementing the CFA's
judgment, the HKSAR government, through Chief Executive Tung
Chee-hwa, applied to the Standing Committee of the National
People's Congress (NPCSC) of the People's Republic of
China for a reinteretation of articles 22(4) and 24(3) of the
Basic Law. On June 26, 1999, the NPCSC obligingly reinterpreted
the articles and thereby overturned the CFA's judgment,
effectively reinstating the requirement that the Certificate of
Entitlement be linked to the one-way permit and thus reinforcing
discrimination against the Mainland-born children of Hong Kong
permanent residents.
7.
The NPCSC's decision to overturn the CFA's ruling has
also jeopardised the independence of Hong Kong's judiciary.
The HKSAR Government has refused to undertake not to seek future
reinterpretations from the NPCSC as it did in this case. The
Submission of the Hong Kong Bar Association on the First Report
of the HKSAR to the Human Rights Committee observed, "The
incident shows that the Government is prepared to succumb to
political pressure... to resort to political process to
reverse the judgement of the Court after it had lost its case in
court. It will be a sad day if our judges have to look over their
shoulders each time they make a controversial decision. It will
be a blow to the rule of law if judges have to take into account
political considerations in making their decisions."
8.
The Asian Legal Resource Centre calls upon the Commission to
encourage the HKSAR Government to remove those discriminatory
policies against new immigrants from Mainland China and to assure
citizens that it will not call on the NPCSC for future
interpretations of the Basic Law.
Posted on 2001-01-30
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