The issue of who has the right of abode in Hong Kong prompted a fierce debate at the end of the 20th century and tested the One Country, Two Systems policy. The debate erupted on 29 January 1999, when the Hong Kong Court of Final Appeals ruled that the children of parents who have the right of abode in Hong Kong also have the right of abode, irrespective of whether their parents were permanent residents at the time of their birth. This ruling would have granted immediate right of abode to up to 300,000 people in Mainland China, depending upon whether family unification would have been limited to children under a certain age, or extended to all people. Those with the right of abode would be allowed to live, work, and vote without restriction in Hong Kong, and is considered desirable by many in neighbouring areas as the territory's quality of life is the highest in the region.
Many political commentators claimed that Hong Kong would have been overrun with those claiming the right of abode from mainland China, possibly disrupting the economy of Hong Kong, which prompted the government of Hong Kong to ask the Standing Committee of the National People's Congress to reinterpret Articles 22(4) and 24(2)(3) of Hong Kong's Basic Law, which effectively overturned the court decision. This move prompted large protests and debate over whether or not Hong Kong's judiciary remained independent from that of mainland China. The NPC's interpretation was appealed to the Court of Final Appeal, who ruled that the NPC's interpretation of the Basic Law was constitutional, thus denying almost all people listed as plaintiffs, including those already in Hong Kong since the first week of 1997, the right of abode.
Citizen and residene in Hong Kong
As Hong Kong is not an independent nation, there are no provisions for Hong Kong citizenship. The right of abode in Hong Kong is almost identical in nature to citizenship, however the right of abode in Hong Kong confers no legal status in mainland China, however, only Chinese citizens with right of abode in Hong Kong are eligible for Hong Kong SAR passports. Non-Chinese citizens with Hong Kong right of abode still maintain their original citizenship unless they successfully naturalise as Chinese citizens. Before the handover of Hong Kong to China in 1997, the right of abode was derived from the United Kingdom, and those who had the right of abode in Hong Kong were British nationals with British Dependent Territories citizenship (BDTC). After the Hong Kong Act 1985 was passed, all BDTC's were eligible to register to apply for a new category of British nationality, known as British National (Overseas) or BN(O). Around 3.5 million residents of Hong Kong held BDTC before the Hong Kong Act 1985. These people would have automatically lost their British nationality with the handover of Hong Kong back to China in 1997, and either become British Overseas citizens or sole citizens of the People's Republic of China (PRC).
Becoming a BN(O) was neither automatic nor involuntary, and indeed many people who had the right to become BN(O)s never registered. At the stroke of midnight on 1 July 1997, all BDTC's lost their citizenship, and if they were of Chinese descent, automatically became PRC citizens with the right of abode in Hong Kong. However, those who were not eligible for Chinese citizenship (includes ethnic Chinese from Southeast Asia countries) were able to maintain their right of abode in Hong Kong because they are still permanent residents of Hong Kong, they retained their BN(O) status and can be registered as British Citizens under the British Nationality (Hong Kong) Act 1997.
Court of Final Appeal judgement in 1999
According to Article 24 of the Basic Law, Chinese nationals may acquire the right of abode in Hong Kong by one of three ways: if they were born in Hong Kong before or after the transfer of sovereignty (Article 24(2) (1)); if they have resided in Hong Kong for a continuous period of not less than seven years before or after the transfer of sovereignty (Article 24(2) (2)); or if they were born outside Hong Kong to persons covered by the above to categories (Article 24(2) (3)). Many people from Hong Kong had moved to Mainland China and started families, and under the immigration law prior to 1 July 1997, their children born in mainland China had no right of abode in Hong Kong. After the Basic Law came into effect, the government of Hong Kong realised that Article 24(2)(3) would have permitted thousands of children in mainland China, who previously had no right to enter Hong Kong for settlement, to immigrate to Hong Kong. Many children who had already illegally come to Hong Kong or overstayed their visas presented themselves to immigration authorities and claimed that they were entitled to stay in Hong Kong under Article 24(2)(3).
In response, the Legislative Council proposed to restrict the right of such persons by adding an additional requirement that one of the child's parents must have been a permanent resident at the time of the child's birth. On 10 July 1997, the Legislative Council passed the Immigration Amendment No. 3 Ordinance that introduced a certification system. Under this system, any person who claims to have the right of abode in Hong Kong can only prove their status by showing a certificate of right of abode issued by the Director of Immigration of Hong Kong. This certificate could only be applied for in mainland China, and would not be issued until the application obtained a one-way permit to cross the border to Hong Kong from the Chinese Public Security Bureau. The amendment was made retroactive to 1 July 1997, which meant that even children who had already arrived in Hong Kong with previously sufficient legal documentation would have been stripped of their right for lack of a certificate that did not yet exist when they entered Hong Kong. The retroactivity of the amendment triggered a number of test cases in court, which eventually came before the Court of Final Appeals as Ng Ka Ling v. Director of Immigration.
In the case of Ng Ka Ling v. Director of Immigration, the Court of Final Appeals was asked to rule on two major issues in the challenge of the constitionality of the Immigration Ordinance. One of which was whether, in order to be deemed a permanent resident under Article 24(2)(3), "persons of Chinese nationality born outside of Hong Kong of those residents listed" who were permanent residents article Article 24(2)(1) and Article 24(2)(2) must have been born at a time when either parent had already become a permanent resident, or whether it was sufficient that either parent subsequently acquired permanent residence. Another issue was whether persons of PRC nationality living in mainland China who qualified for permanent residence in Hong Kong under Article 24 would have to acquire an exit permit from the Chinese government to leave mainland China before they could exercise the right of abode in Hong Kong. This requirement was allegedly justified on the basis of Article 22 of the Basic Law, which states that "people from other parts of China must apply for approval" from the Chinese government before entering Hong Kong, and that the central government in Beijing determines the number of people who may enter Hong Kong for settlement, after consultation with the Hong Kong government. The issue thus became one of whether Article 22 constituted a restriction to free exercise of Article 24.
The Court of Final Appeal announced its far-reaching verdict on 29 January, 1999, which affirmed some fundamental constitutional principles. The Court of Final Appeal held that the Basic Law was a living document that, like any other constitution, should receive a generous and purposive approach to interpretation. The Court of Final Appeal also held that in considering any particular provision, the court should take into account the International Covenant of Civil and Political Rights (ICCPR) as it applied to Hong Kong. The Court of Final Appeals found that the right of abode was a core right under the ICCPR, and that based upon the ICCPR and other international treaties, taking away a core right by retroactive legislation was unconstitutional, and in this regard, no distinction should be drawn between legitimate and illegitimate children. The court also rejected the idea that Article 22(4) qualified the right of abode in Article 24(2)(3). The Court found that a scheme to verify the claim of right of abode was in itself constitutional, but that linking the certification system to the one-way permit system, which essentially concerned the right to exit mainland China and nothing to do with the right of abode in Hong Kong, was unconstitional. In another decision delivered on the same day, the Court further held that, as a matter of construction of Article 24, it was unnecessary that the parent was a Hong Kong permanent resident at the time of the birth of the claimant in order for the claimant to enjoy a right of abode in the HKSAR. The Court's decisions confirmed the right of abode in the HKSAR for an estimated 1.67 million persons born in the mainland, a figure that would continue to rise.
On 29 January 1999, the Court of Final Appeal, the highest judicial authority in Hong Kong, ruled that Article 24(2)(3) of the Basic Law gives the right of abode (ROA) to children born of a Hong Kong permanent resident, regardless of whether that parent became a permanent resident before or after the child's birth. Furthermore, despite Article 22(4) of the Basic Law which stated that people "from other parts of China" must apply for approval for entry into Hong Kong, the Court ruled that persons who have ROA under Article 24(2) of the Basic Law are not subjected to the provision.
Based on the ruling, the Government estimated that the additional eligible persons in Mainland China who can obtain the Right of Abode (and therefore can immigrate to Hong Kong) within ten years would reach 1.6 million, and would result in very severe social and economic problems. While some questioned the methodology of the survey, opinion polls conducted revealed widespread concerns among the public on the consequences.
The debate the way forward
A number of persons in the legal sector believed that the best way forward was to seek the National People's Congress (NPC) of the People's Republic of China to amend the part of the Basic Law in order to redress the problem. They argued that judgment has correctly reflected the true legislative intent of Articles 22(4) and 24(2)(3) of the Basic Law, and there are precedents in common law jurisdictions to repudiate a court judgment by means of legislative amendment. However, the Government pointed out (in May 1999) the disadvantages of such option, that since the NPC would meet only once a year in March, a large number of ROA claimants would have flooded Hong Kong by then, and also that the Basic Law, as a constitutional document, should not be amended lightly before other options are fully explored.
Based on the above, the Hong Kong Government sought interpretation of, rather than amendment to, the Basic Law from the Standing Committee of the National People's Congress (NPCSC). The power of interpretation of the Basic Law by the NPCSC is explicitly provided under Article 158(1) of the Basic Law. However, no mechanisms are explicitly provided under that Article for the Government to take the initiative to seek an interpretation. (The Article provides only that the Court should seek an interpretation if it comes across Basic Law provisions concerning affairs under the responsibility of the Central Government or its relationship with the HKSAR before the final judgement. Article 22 in question is arguably one of such provisions).
Judicial independence undermind?
Some have argued that the judicial independence of Hong Kong is undermined by the act of Government seeking an interpretation of the Basic Law after a judgement by the judiciary has been made. (Some critics dubbed this a re-interpretation of the Basic Law). In addition, the fact that NPC is the law-making body of People's Republic of China has prompted critics to argue that the principle of One country, two systems is endangered. The Government argued otherwise. In its paper Right of Abode, The Solution, the problems facing the HKSAR, the options, and the considerations leading to the decision were elaborated. The Secretary for Justice, Elsie Leung, further defended Government's decision in her speech to the Legislative Council after announcing the decision.
Others have argued that regardless of the merits of the case, it was politically unwise for those worried about Hong Kong legal autonomy to use this as a test case to assert Hong Kong's judicial independence, since it is the general consensus that the Hong Kong public tended to support the position of the SAR government as well as the legal interpretation of the NPCSC.
On 26 June 1999, in line with the request of the HKSAR Government, the NPCSC issued its interpretation which makes it clear that children born outside Hong Kong will be eligible for the right of abode only if at least one of their parents has already acquired permanent residence status at the time of their birth. Also, those eligible for ROA need to comply with Article 22 of the Basic Law, i.e. they need to apply for the necessary approval from the relevant Mainland authorities before entry into Hong Kong.
The Chief Executive, Tung Chee Hwa, announced measures to be taken by the Government. Later rulings of the Court of Final Appeal confirmed that the Government had acted entirely constitutionally and legally.
Differences in opinion remain as to whether Hong Kong's judicial independence and the rule of law have been undermined. Criticism of the interpretation has originated largely from the legal sector.