COMILANG, MILAGROS TECSON AND ANOTHER v. DIRECTOR OF IMMIGRATION

Press Summary (English)

Press Summary (Chinese)

FACV Nos. 9 and 10 of 2018

[2019] HKCFA 10

FACV No. 9 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 9 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 59 OF 2016)

____________________

_____________________

FACV No. 10 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2018 (CIVIL)

(ON APPEAL FROM CACV NO. 60 OF 2016)

____________________

________________________

J U D G M E N T

_________________________

Chief Justice Ma:

1.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ.

Mr Justice Ribeiro and Mr Justice Fok PJJ:

2.  These appeals are brought by members of two families.  In each case, the 1^st appellant is a mother who is a foreign national who has no right of abode and no right to enter or remain in Hong Kong.  The other appellants in each case are their respective minor children who have either Hong Kong resident (“HKR”) or Hong Kong permanent resident (“HKPR”) status.  Each of the mothers has applied for a further extension of permission to remain in Hong Kong to take care of the children concerned.  Their applications were refused by the Director of Immigration (“the Director”) on the basis that they do not fall within any of the categories recognised under his immigration policy and that no exceptional circumstances exist to justify an extension on humanitarian or compassionate grounds.

3.  The appellants challenge the Director’s refusal arguing that, in reaching his decision, he wrongly failed to take into account and give effect to a series of rights under the Basic Law,[1] the International Covenant on Civil and Political Rights (“ICCPR”),[2] the International Covenant on Economic, Social and Cultural Rights (“ICESCR”),[3] the Convention on the Rights of the Child (“CRC”)[4] and the best interests of the child principle at common law (collectively “the asserted rights”).

4.  The appellants’ challenge failed before Au J[5] and the Court of Appeal,[6] both Courts holding that, by virtue of the immigration reservation contained in section 11 of the Hong Kong Bill of Rights Ordinance (“HKBORO”),[7] which enjoys constitutional status by virtue of Article 39 of the Basic Law, the asserted rights are not engaged. 

5.  Leave to bring the present appeal was granted by the Appeal Committee[8] which held that the following questions of law involved in the appeal are of the requisite general or public importance, namely:

When a parent applicant, who is a foreign national with no right of abode in Hong Kong, makes an application for permission to remain in Hong Kong to take care of his/her minor child, who is a HKSAR permanent resident having the right of abode in Hong Kong, whether the Director of Immigration in considering the application is obliged, as a matter of law, to take into account the parent-and-child family’s enjoyment of applicable fundamental rights while living in Hong Kong. (Question 1)

Whether section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) exempts the immigration authorities from having to take into account rights protected under the Basic Law of a child member of the family, when decisions are made by immigration authorities under immigration legislation in respect of the non-Hong Kong resident family member impacting on the integrity of the family and the enjoyment of family life in Hong Kong. (Question 2)

A.     The facts

A.1   The Comilang appeal

6.  The 1^st appellant, Ms Milagros Tecson Comilang (“Ms Comilang”), is a national of the Philippines and came to Hong Kong in 1997 as a foreign domestic helper.  After her contract of employment came to an end in July 2005, she married Mr Ahmed, a Pakistani national, on 7 October 2005.  Mr Ahmed had acquired HKPR status in 2004.  On 2 February 2006, Ms Comilang gave birth to a daughter, Zahrah, the 2^nd appellant, whose status as a HKPR was established at birth. 

7.  On 10 October 2005, three days after her marriage to Mr Ahmed and prior to Zahrah’s birth, Ms Comilang’s permission to stay expired.  She thereupon applied to the Director for a change of status to enable her to remain in Hong Kong as Mr Ahmed’s dependant.  However, it was discovered that Mr Ahmed was still married to another woman in Pakistan when he purported to marry Ms Comilang.  On 8 May 2007, Mr Ahmed withdrew his support for her change of status application and Ms Comilang left him for good on 4 June 2007, keeping Zahrah with her.

8.  Between September 2007 and April 2011, a number of applications by Ms Comilang for extensions of stay to take care of Zahrah were rejected by the Director.  She succeeded in judicial review proceedings against those rejections when the Court of Appeal held that the Director had adopted a wrong approach to her applications for extension.[9]  However, on reconsideration, the Director again refused her application for an extension of stay, finding that it did not fall within any of the recognised categories under the Department’s immigration policy and that no exceptional circumstances justified an extension on humanitarian or compassionate grounds.  As noted above, Ms Comilang’s judicial review proceedings against this second refusal failed in the Courts below.

A.2   The Luis appeal

9.  The 1^st appellant, Ms Desiree Rante Luis (“Ms Luis”), is also a national of the Philippines and came to Hong Kong as a foreign domestic helper in 1991.  She married Mr Luis, a fellow Filipino and foreign domestic helper, in Hong Kong in 1997.  The 2^nd, 3^rd and 4^th appellants (David, Carl and Mark) are their sons, born in Hong Kong in June 2002, August 2004 and December 2009 respectively, all thus being minors. 

10.  In April 2006, after David and Carl were born, Ms Luis’s employment ended and she left Hong Kong on 3 June 2006.  Between that date and January 2012, she made numerous trips to Hong Kong, entering as a visitor, and obtained many extensions of stay.  Mark was born in Hong Kong in December 2009 on one of those visits.  David acquired HKPR status in 2010 while Carl and Mark remain in Hong Kong as dependants of Mr Luis and have HKR status.  There was evidence that Carl and Mark have medical conditions that require regular medical monitoring.

11.  On 26 January 2012, the Director refused Ms Luis permission to stay to take care of her three sons living here.  After a further application for an extension of stay was refused on 26 July 2013 on grounds similar to those applied to Ms Comilang, Ms Luis applied for judicial review of that decision in May 2014.  As noted above, her application failed in the Courts below.

B.     The asserted rights

B.1   The claims of the mothers and of the children

12.  The constitutional, statutory and common law rights asserted by the appellants are set out below.  They are relied on in two ways. 

13.  First, the 1^st appellants, the mothers, contend that they are entitled to assert relevant rights directly on their own behalf as a basis for challenging the Director’s refusal of an extension of stay, or at least for contending that the Director is legally obliged to take those rights into account in deciding whether to grant them extensions of stay.

14.  Secondly, the other appellants, the minor children (acting by their respective mothers as their next friends), assert relevant rights on their own behalf, contending that they confer an entitlement to have their mothers granted permission to stay in Hong Kong to take care of them, or at least that the Director is legally obliged to take the asserted rights into account in deciding whether to grant the extensions of stay sought by their mothers.

B.2   The relevant provisions

15.  Provisions material to the asserted rights comprise the following:

B.2a Under the Basic Law[10]

BL 4

The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law.

BL 24

1.     Residents of the Hong Kong Special Administrative Region (“Hong Kong residents”) shall include permanent residents and non-permanent residents.

2.     The permanent residents of the Hong Kong Special Administrative Region shall be:

...

(4)      Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5)      Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; …

3.     The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

4.     The non-permanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.

BL 37

The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.

BL 39

(1)     The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

(2)     The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

BL 41

Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.

BL 154(2)

The Government of the [HKSAR] may apply immigration controls on entry into, stay in and departure from the [HKSAR] by persons from foreign states and regions.

B.2b Under the HKBORO[11]

Section 11

As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. 

B.2c Under the Bill of Rights (“BOR”) implementing the ICCPR

BOR 14 [ICCPR 17]

(1)     No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)     Everyone has the right to the protection of the law against such interference or attacks.  

BOR 19(1)-(2) [ICCPR 23(1)-(2)]

(1)     The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2)     The right of men and women of marriageable age to marry and to found a family shall be recognized. ...

BOR 20(1) [ICCPR 24(1)]

(1)     Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

B.2d Under the ICESCR

ICESCR 10

The States Parties to the present Covenant recognize that: 

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.  ... 

B.2e Under the CRC

CRC 3

(1)     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(2)     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

B.2f  The common law principle of the best interests of the child

This is dealt with in Section E.3 below.

C.     The immigration reservation

16.  The immigration reservation contained in section 11 of HKBORO set out above has a centrally important bearing on all the issues in this appeal. The constitutional status, scope and effect of that provision were closely examined in three decisions of the Court, namely, in Ubamaka v Secretary for Security;[12] GA v Director of Immigration;[13] and Ghulam Rbani v Secretary for Justice.[14] The legal effect of section 11 is thus well-established.  However, because of its crucial importance in the present case, the analysis bears reiteration.

C.1   Application of the immigration reservation to Hong Kong

17.  When, on 20 May 1976, the United Kingdom Government ratified the ICCPR, extending it to its dependent territories including Hong Kong, it did so with a number of reservations, among them an immigration reservation which stipulated as follows:

“The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of article 12(4) and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories.”

18.  It is clear that, as a matter of international law, such a reservation is consistent with the rights of sovereign states to control the entry, residence and expulsion of aliens.[15]

19.  As pointed out in Ubamaka:[16]

“The extension to Hong Kong of the ICCPR subject to the immigration reservation therefore meant that the Hong Kong Government reserved mutatis mutandis the right to continue to apply such immigration legislation governing entry into, stay in and departure from Hong Kong as it might deem necessary from time to time and, accordingly, that its acceptance of art.12(4) and of the other provisions of the Covenant was subject to the provisions of any such legislation as regards persons not at the time having the right under the law of Hong Kong to enter and remain in Hong Kong.”

20.  In the Joint Declaration executed on 19 December 1984 by the Central People’s Government and the United Kingdom Government regarding China’s resumption of the exercise of sovereignty over Hong Kong, it was agreed that the ICCPR “as applied to Hong Kong shall remain in force”.[17]

21.  Accordingly, the Basic Law promulgated on 4 April 1990 (to come into effect on 1 July 1997) contained BL 39 set out above, providing that the ICCPR “as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”

22.  Subsequently, on 8 June 1991, HKBORO was enacted.  Its long title states that it is “An Ordinance to provide for the incorporation into the law of Hong Kong of provisions of the [ICCPR] as applied to Hong Kong; and for ancillary and connected matters”.  Its section 11 (set out above) mirrors and gives effect to the immigration reservation as applied to Hong Kong.  Referring to immigration legislation governing “entry into, stay in and departure from Hong Kong”, it also reflects BL 154(2) which authorises the HKSAR to exercise immigration “controls on entry into, stay in and departure from the [Region]”.[18]

23.  HKBORO was subjected to the vetting process prescribed by BL 160.  The Ordinance,[19] including section 11, was adopted as consistent with the Basic Law and thus as part of the law of the HKSAR with effect from 1 July 1997.[20]

C.2   Incorporation of the BOR subject to section 11

24.  Against this background, our courts have consistently held that by enacting HKBORO, the fundamental rights guaranteed by the BOR set out in Part II of the Ordinance, have not merely been incorporated domestically but, by virtue of BL 39, incorporated as part of the Basic Law and given constitutional effect.  This is the consequence of BL 39(2) which protects the rights and freedoms of Hong Kong residents against restrictions which “contravene the provisions of the preceding paragraph of this Article”, such provisions being for present purposes the ICCPR as applied to Hong Kong and incorporated via HKBORO.

25.  Thus, in HKSAR v Ng Kung Siu,[21] Li CJ noted that BOR 16, dealing with freedom of expression, is incorporated into the Basic Law by virtue of BL 39.  In Shum Kwok Sher v HKSAR,[22] Sir Anthony Mason NPJ held that the BOR provisions should be interpreted in the same way as BL 39 and given a purposive and generous interpretation since their object is to guarantee the fundamental rights and freedoms of HKSAR residents.  And in Swire Properties Ltd v Secretary for Justice,[23] Bokhary PJ stated that the whole of the BOR “is entrenched by art.39 of our constitution the Basic Law”.  Similarly, in Ubamaka[24] it was recognised that HKBORO is given constitutional force by BL 39.  Thus, by virtue of BL 39, the rights in the BOR take effect in the law of the HKSAR as constitutional guarantees.

26.  By tracking the wording of the immigration reservation, the intention of section 11 is plainly to give effect to BL 39’s stipulation that the content of the ICCPR “as applied to Hong Kong” – in other words, as applied subject to the immigration reservation –  is to be incorporated.  In Gurung Kesh Bahadur v Director of Immigration,[25] Li CJ put this as follows:

“The provisions of the [ICCPR] as applied to Hong Kong were implemented through the [HKBORO], which contains [the BOR]. That Ordinance effects the incorporation of the ICCPR as applied to Hong Kong into our laws [citing Shum Kwok Sher, and Ng Kung Siu].The ICCPR as applied to Hong Kong was subject to the reservation, originally made by the United Kingdom, that immigration legislation as regards persons not having the right to enter and remain could continue to apply. It is unnecessary to set out the terms of the reservation in full since it is reflected in [section 11 of HKBORO].”

27.  In giving effect to the immigration reservation as part of the implementation process mandated by BL 39, section 11 lays down a specific exception limiting the scope of the BOR rights incorporated in the Basic Law.  As Ma CJ points out in GA:[26]

“The intention of s.11 is to except the applicability of the BOR to the aforesaid aspects of immigration control [i.e. entry into, stay in and departure from Hong Kong].

…

… the provision is intended to except immigration legislation that deals with each stage of a person’s stay in Hong Kong, as stated earlier, from entry through his or her stay in Hong Kong, to departure.”

C.3   Constitutional status of section 11

28.  Section 11 therefore operates at the constitutional level.  It excludes from the scope of the provisions of the BOR given constitutional effect by BL 39, immigration legislation governing entry into, stay in and departure from Hong Kong and the application of such legislation.

29.  This is subject to the qualification identified in Ubamaka which is not presently relevant. The Court there held that, as a matter of construction, section 11 read together with section 5 of HKBORO, does not operate to exclude the protection of BOR 3 which confers an absolute and non-derogable right against torture and cruel, inhuman or degrading treatment or punishment.

C.4   A consistent scheme of constitutional rights

30.  While the limitation created by section 11 expressly addresses the scope of HKBORO, this Court has held that the scheme of constitutional rights laid down by the Basic Law, both in its Chapter III and in the BOR incorporated via BL 39, must be interpreted as a coherent whole, consistently with section 11. 

31.  Thus, in Rbani, a case involving detention of a non-resident person by the exercise of the Director’s powers to regulate termination of his stay in Hong Kong, it was held[27] that section 11 excludes such person’s reliance on BOR 5(1) which provides: 

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

32.  The appellant relied also on similar rights under BL 28 which protects freedom of the person and prohibits arbitrary or unlawful detention[28] via his reliance on BL 41 which provides:

“Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”[29]

33.  Stressing that section 11 operates at the constitutional level, the Court held that the rights conferred on non-residents by BL 41 “in accordance with law” are to be understood as constitutional rights operating as a coherent scheme consistently with the immigration reservation. It would not be coherent for section 11, given constitutional force by BL 39, to exclude non-residents from relying on BOR 5(1) (as it clearly does) while construing BL 41 to permit such non-residents to rely on similar rights under BL 28 in the same excepted immigration context. 

34.  Thus, it was held in Rbani[30]that:

“... in giving constitutional status to the Hong Kong Bill of Rights Ordinance including s.11, BL art.39 gives constitutional status to a specific exception to relevant provisions of the Hong Kong Bill of Rights in relation to persons not having the right to enter and remain in Hong Kong and in respect of immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of such legislation. ... [That] exception precludes resort to the right to liberty and security of person under BOR art.5(1) by the aforesaid class of persons in relation to the application of the specified categories of immigration legislation. Giving effect to the words ‘in accordance with law’ in BL art.41, it is necessary to read BL art.28, which is concerned with freedom of the person in general, as subject to that specific exception provided for by s.11, given constitutional status by BL art.39.”

35.  It was therefore held that the exception created by the immigration reservation, given constitutional force by BL 39, 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.

D.     The appellants’ case

36.  The two-fold nature of the claims separately asserted by, on the one hand, the appellant mothers (1^st appellants in each appeal) and, on the other hand, the appellant children (the 2^nd and other appellants in each appeal), and the various rights asserted, are described in Sections B.1 and B.2 above.

37.  It is the contention of the appellants, both the mothers and the children, that the Director was under a duty to take into account the various rights asserted by them in considering whether to grant an extension of stay to the mothers to remain in Hong Kong. The complaint of the appellants is that the Director did not start from the premise that they, both the mothers and the children, had these rights when making the decisions under challenge, namely the decisions to refuse to allow the mothers to remain in Hong Kong.  It was the appellants’ case that the Director, being obliged to take those rights into account, should have given effect to them by recognising that his decision to refuse permission to the mothers to stay would infringe those rights.  Therefore, it was contended, the Court should declare that such infringement of the appellants’ rights should be subject to a proportionality analysis conducted by the Director upon a remission of the challenged decisions to him.

D.1     The rights asserted by the mothers

D.1a     The mothers’ rights under the BOR

38.  So far as the rights contained in the BOR are concerned, section 11 of HKBORO excludes reliance on those rights by the mothers.  That this was the effect of section 11 was not disputed by the appellants.  This was a correct concession on their part.  The rights relied upon were not of the character excluded from the operation of section 11 (see [29] above).  As a matter of clear language, the specific exception of relevant provisions of the BOR provided by section 11 plainly applies to the appellant mothers.  They are persons not having the right to enter and remain in Hong Kong and the Director’s decisions under challenge were made pursuant to the application of immigration legislation governing entry into, stay in and departure from Hong Kong.

D.1b     The mothers’ rights under the Basic Law

39.  Faced with the obstacle of section 11 to reliance on rights under the BOR, the appellant mothers contended that their reliance on BL 37 was not excluded by section 11.  In addition, they relied on section 2(5) of HKBORO to contend that the immigration reservation in section 11 could not restrict or derogate from rights arising under the Basic Law. Further, they relied on the decision of this Court in Gurung Kesh Bahadur v Director of Immigration[31] to support the proposition that rights arising under the Basic Law were not affected by any restriction or limit in HKBORO.

D.1b(i)     Scope of the Basic Law rights

40.  The appellants’ reliance on BL 37 raises the question of the scope of the rights conferred by that article. The appellants’ contention was that the right “to raise a family freely” included the right to family unity. There is a question as to whether BL 37 is to be so interpreted and the Director disputed that interpretation contending instead that the right in BL 37 was a right to procreate freely and not to be subject to any policy in the PRC limiting the number of children which a couple may lawfully have.

41.  Regardless of that, since the appellant mothers are not Hong Kong residents but only have visitor status here, their rights under Chapter III of the Basic Law are rights enjoyed pursuant to BL 41 and the scope and effect of those rights is qualified by section 11 which, as explained in Section C above (in particular the citation from Rbani at [97]), operates at the constitutional level.

42.  Thus, the rights claimed by the appellant mothers under BL 37 through BL 41 are constitutionally subject, via BL 39, to the section 11 exception.  The appellants were therefore forced to argue that Rbani was wrongly decided in this respect.  We reject that submission.  As pointed out in Section C.4 above and as decided in Rbani, it would be incoherent to hold that section 11, given constitutional effect by BL 39, excludes reliance on the relevant rights in the BOR (BOR 14, 19 and 20) while permitting reliance on cognate rights under BL 37 via BL 41. There is no indication that the drafters of the Basic Law were intending to give greater rights to challenge immigration decisions than were available under the provisions of the BOR prior to the Basic Law coming into effect on 1 July 1997.

D.1b(ii)   HKBORO section 2(5)

43.  Section 2(5) of HKBORO, reflecting ICCPR 5(2),[32] provides:

“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognizes them to a lesser extent.”

44.  The appellants rely on section 2(5) to argue that, even if it excludes or limits any of the rights under the BOR, section 11 cannot affect rights under the Basic Law.  The premise of this argument is that there are other relevant rights recognised or existing in Hong Kong pursuant to law (etc.) upon which the appellants can rely which are therefore not to be restricted or derogated from.  Those rights, it is said, include BL 37.  In this way, the appellants seek to insulate Basic Law rights from section 11.

45.  We do not accept that argument.  Section 2(5) and section 11 are both provisions in HKBORO and there is no reason to regard them as mutually inconsistent.  What section 2(5) does is to prevent the BOR from derogating from any relevant “fundamental human rights recognized or existing in Hong Kong”.  Properly construed, section 2(5) operates on the footing that such “recognized or existing rights” are rights which are qualified by section 11 given constitutional status by BL 39 in the specified immigration context.  As discussed in Section C.4 above, the rights conferred by Chapter III of the Basic Law and by the BOR incorporated by BL 39 are to be interpreted as a coherent and consistent scheme.  Section 2(5) is not to be given a construction bringing incoherence to that scheme.

46.  There is nothing in section 2(5) comparable to section 5 of HKBORO capable of negating the effect of section 11 by reference to any absolute and non-derogable rights as discussed in Ubamaka (see [29] above).  In other contexts, unaffected by section 11, section 2(5) has an important role to play in protecting rights against any restriction or derogation. 

D.1b(iii)     Gurung Kesh Bahadur v Director of Immigration

47.  The appellants relied on Gurung Kesh Bahadur at [28] to contend that, since they were relying in this case on rights under the Basic Law that are separate from and additional to those contained in the BOR, section 11 could not operate to qualify any of those rights.  We do not accept that the passage cited has any bearing on the issues in the present case.

48.  It is important to note, however, that the respondent in Gurung Kesh Bahadur was a Hong Kong non-permanent resident who had been granted permission to stay and was still within his limit of stay when he sought to exercise his right to re-enter Hong Kong pursuant to that permission.  As such, the Court held (at [40]) that the application of section 11(10) of the Immigration Ordinance[33] to such a non-permanent resident, whose permitted limit of stay had not expired, was inconsistent with his freedom of movement rights under BL 31.[34]  The Court noted that section 11(10):

“… continues validly to apply to persons who are not non-permanent residents with an unexpired limit of stay, for example, to visitors.”

49.  Thus, the Court emphasised (at [42]) that the judgment in that case only concerned a non-permanent resident whose permitted limit of stay had not expired and that:

“A person whose limit of stay has expired would cease to be a non-permanent resident and would be in a very different position. Further, as has been pointed out, as regards a non-permanent resident in the position of the respondent, the [Immigration] Ordinance contains powers for curtailing the period of his permitted limit of stay as well as for his removal and deportation.”

50.  The appellants’ reliance on Gurung Kesh Bahadur cannot assist them because the appellant mothers are not Hong Kong residents and do not have any right to enter or remain in Hong Kong.  Their positions are materially different to that of the respondent in Gurung Kesh Bahadur.

D.2    The rights asserted by the children

51.  The appellants’ contention, in respect of the appellant children, is that when the Director makes a decision concerning the non-HKR mothers, he has to take into account the family rights of the children, under both the BOR and also the Basic Law.

52.  In considering this contention, it is important to keep in mind the nature of the decisions under challenge in this case.  Here, the appellants are seeking to challenge immigration decisions governing entry into, stay in or departure from Hong Kong in respect of persons with no right to enter or remain in Hong Kong.  Whether viewed from the perspective of the appellant children or the appellant mothers, one is still concerned with a decision not to allow a person to stay in Hong Kong who has no right to enter or remain in Hong Kong.

D.2a    The children’s rights under the Bill of Rights

53.  As with the mothers, section 11 also bars the appellant children’s reliance on rights under the BOR.  This is so both as a matter of construction of the language of section 11 and also as a matter of purposive construction of that section.

54.  First, as a matter of plain language, section 11 precludes reliance on rights under the BOR (subject to the qualification noted in Ubamaka) so long as the impugned decision involves the application of immigration legislation governing entry into, stay in or departure from Hong Kong as regards a person not having the right to enter or remain.  The exception in section 11 does not focus on who has the fundamental rights but rather on the content of the decision itself and to whom the decision specifically relates. 

55.  This construction was adopted in the judgment of Nazareth JA in In re Hai Ho Tak and Cheng Chun-heung,[35] where (at p.209) he held:

“It seems to me also, that the meaning of s. 11 is quite clear: the Bill of Rights (as part of the Ordinance) does not affect immigration legislation governing the entry into, stay in and departure from Hong Kong of a person who does not have the right to enter and remain in Hong Kong; nor, more to the point, does the Bill affect the application of such legislation. That means not that members of the family of such a person (whether or not they have the right to enter and remain) do not have ‘family’ rights under the Bill, but that their family rights do not affect such legislation or its application in relation to that person; likewise that even if such family members have locus standi in proceedings such as this, their family rights would not avail in respect of the operation of such immigration legislation as regards that person.”

(Emphasis added)

56.  The appellants submitted that Hai Ho Tak was wrongly decided and should be overruled.  This argument is addressed in Section D.4 below.

57.  As a matter of purpose, we accept the Director’s submission that it would frustrate the evident purpose of section 11 and BL 39 if a person who has no right to enter and remain is able to circumvent that position by saying: “I’m relying on someone else’s rights”.  An interpretation of the children’s rights to such effect would lead to incoherence in the constitutional scheme.  The need for a coherent approach is especially cogent given the recognised necessity for strict and effective immigration control that has long been the policy adopted in Hong Kong.  As noted by Ma CJ in his judgment in GA v Director of Immigration,[36] in the context of claims by asylum seekers to be entitled to work whilst in Hong Kong pending resettlement elsewhere (at [30]):

“Particularly in a place like Hong Kong, which has considerable economic attractions to many people, the need to control immigration and to control the number or type of people who may wish to work here, can easily be seen.”

D.2b     The children’s rights under the Basic Law

58.  Even if they are excluded from relying on rights under the BOR, the children appellants’ case proceeds on the basis that they can nevertheless rely on independent family rights arising under the Basic Law.  These Basic Law rights are not, they contend, subject to the section 11 exception and so are rights which the Director is duty bound to take into account when exercising any discretion under the Immigration Ordinance in respect of the mothers which may have an effect on the children’s enjoyment of those family rights.

59.  The correctness of this contention depends on the interpretation of the Basic Law and the particular rights relied upon.  We shall address the appellants’ particular reliance on BL 24 below (in Section D.3).  For the following reasons, we would reject the appellants’ contention so far as it was based on BL 37.

60.  First, the approach to interpretation of the Basic Law is now well-established: see Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at pp.28-29 and Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 at [76]-[77].  Provisions of the Basic Law are to be construed in the light of their context and purpose.  The context of a provision of the Basic Law includes other provisions of the Basic Law and the provisions of the ICCPR as applied to Hong Kong. Context and purpose are to be considered in the first instance and not merely in the case of ambiguity.

61.  Applying those settled principles, the Basic Law rights relied upon must be construed as a coherent whole together with BL 39 and section 11 which, for the reasons explained above, is given constitutional status.  Although section 11 in terms only applies textually to the rights set out in HKBORO, by necessary implication it limits the application of cognate rights in the BL whether they are invoked directly or in connection with the enjoyment of another right (as further discussed in relation to BL 24 below).  To seek to isolate section 11 would frustrate BL 39, especially when the family rights relied upon under the Basic Law (in particular BL 37) are also contained in the ICCPR (Articles 17, 23 and 24) and BOR (Articles 14, 19 and 20).

62.  Secondly, there is a clear link between section 11 and BL 154(2) as reflected in the constitutional jurisprudence of this Court.  The provisions were read together in Ubamaka at [102].  In GA v Director of Immigration (supra), Ma CJ held (at [29(1)]) that it was clear from section 11 that it was dealing with immigration control on entry into, stay in and departure from Hong Kong “as reflected in art.154(2) of the Basic Law”.  And at [29(3)], Ma CJ further held that:

“The intention of art.154(2) of the Basic Law and the Reservation, both of which are couched in general terms, must have been, one would have thought, for the purpose for enabling effective immigration control to be exercised.”

See also, Rbani at [86], where these passages from GA were referred to with approval.

63.  Contrary to the appellants’ submission that the geographical circumstances of Hong Kong are only relevant and to be considered at the stage of conducting a proportionality exercise to determine if an infringement of a constitutional right is justified, the linkage between BL 154(2) and section 11 demonstrates that, save for non-derogable rights, the drafters of the Basic Law thought it appropriate to exclude all other rights, be they in the BOR or the Basic Law, in the context of a decision relating to entry into, stay in or departure from Hong Kong by someone without the right to enter and remain.

64.  Thirdly, the appellants’ argument entails accepting that the coming into effect of the Basic Law effected a radical change to the BOR.  From 1991, when HKBORO was enacted, until 1 July 1997, the rights under the BOR did not apply in the immigration context falling within section 11 and the law before 1 July 1997 was reflected in Hai Ho Tak.  There is no discernible basis for concluding that the intention of the drafters of the Basic Law was, through the coming into effect of the Basic Law, to impose new and stricter limits on the discretion of the Director of Immigration in making immigration decisions.  Such a conclusion would fly in the face of the clear theme of continuity reflected in the Basic Law: see Secretary for Justice v Lau Kwok Fai & Another (2005) 8 HKCFAR 304 per Sir Anthony Mason NPJ at [35].

65.  Even on the appellants’ case, the family rights under BL 37 are no greater than the rights conferred under the BOR 14, 19 and 20.  That being the case, given the constitutional status of section 11 through BL 39, it is untenable to contend that BL 37, viewed as part of a coherent scheme of rights, is not subject to the immigration reservation.  In the circumstances, it is unnecessary to consider the Director’s alternative argument as to the scope of BL 37.

D.3    BL 24

66.  Faced with these difficulties in respect of reliance on Basic Law rights which reflect similar rights to those protected under the BOR, the appellants submitted that their reliance on BL 24 was different in that there is no parallel between the rights conferred by BL 24 and those conferred in the BOR. 

67.  BL 24 is concerned with the categories of persons who are qualified to be permanent residents of the HKSAR.  BL 24(3) confers the substantive right of abode on such residents and their right to be issued with a permanent identity card stating their right of abode.  BL 24 has no equivalent in the BOR since none of the provisions of the ICCPR are directly concerned with the right of abode or the categories of nationals and non-nationals who should be entitled to that right.

68.  On this basis, the appellants contended that the refusal of entry to the mother appellants had the effect of interfering with the right of abode of the children appellants since it had or could have the practical consequence that the children, being dependent on their mothers, would not be able to exercise their right of abode because they would have to leave Hong Kong in order to be cared for by their mothers.

69.  This novel argument in respect of BL 24 cannot be accepted.  The rights conferred by BL 24 do not enable a permanent resident to require the Director to permit any other person to enter Hong Kong.  As pointed out above, the decision being challenged is the Director’s decision refusing an extension of stay to the non-resident mothers, whether viewed from the perspective of the children or their mothers.  While cast as an argument based on BL 24, the appellants’ case depends in reality on an asserted family unity right necessarily incidental to the enjoyment of the right of abode.  The challenge both by the mothers and their children is to the Director’s exercise of his powers of immigration control covered by section 11 on the footing that they have a right (under BOR 14, 19 or 20 and BL 37) not to have their family relationship disrupted, the practical consequence of which is said to be the endangering of their children’s BL 24 right to permanent residence.  As indicated above, by necessary implication, section 11 limits the application of rights in the BOR and cognate rights in the Basic Law (here the family unity rights) whether they are invoked directly or in connection with the enjoyment of another right (here BL 24).  The appellants’ attempt to hermetically seal BL 24 from the BOR and the rest of the Basic Law, including BL 37, BL 39 and BL 154(2) must fail. 

D.4    In re Hai Ho Tak and Cheng Chun-heung

70.  As noted above, the appellants argued that the Court of Appeal’s decision in Hai Ho Tak was wrong and that it should be overruled.  Three reasons were advanced in support of this argument, namely:[37]

(1)     It was contrary to the principle that rights are to be construed generously and reservations narrowly: it amounted to reading the words “or their family members” into section 11 after “persons not having the right to enter and remain in Hong Kong”;

(2)     It failed to regard the HKPR and HKR family members as rights-holders in their own right and, contrary to the approach in Beoku-Betts v Secretary of State for the Home Department,[38] failed to consider family rights holistically and not separately; and

(3)     The appellants’ contrary construction of section 11 did not empty the section of meaning or permit a free-for-all for a family one of whose members is a non-HKR because the Director’s immigration concerns would be addressed on a proportionality analysis.

71.  The answer to these criticisms of Hai Ho Tak lies in the constitutional status given to section 11 as explained in Ubamaka, GA and Rbani.  Non-resident family members cannot rely on the family rights of HKPR or HKR children to challenge immigration decisions refusing them permission to enter or remain in Hong Kong to be with their children, as a matter of Hong Kong constitutional law.  Reliance on Beoku-Betts to support the contention that immigration authorities should consider the rights of close family members of those affected by their decisions does not avail the appellants since there is no equivalent of section 11, or BL 39 or BL 154(2), in the relevant laws of the United Kingdom.

72.     Hai Ho Tak is consistent in particular with Rbani. The passage from Nazareth JA’s judgment in Hai Ho Tak (at p.209) quoted above remains a correct statement of the law since the coming into effect of the Basic Law on 1 July 1997.

E.     Other rights relied upon by the appellants

73.  The appellants also sought to rely on various other rights arising under the ICESCR and the CRC and also the common law principle of the best interests of the child.  These may be disposed of briefly.

E.1    ICESCR 10

74.  The appellants’ reliance on ICESCR 10 is unsustainable for the simple reason that the ICESCR is an international treaty and under the common law dualist principle is not self-executing.  Unless and until made part of Hong Kong domestic law by legislation, the provisions of such a treaty do not confer or impose any rights or obligations on individual citizens.  This principle has been clearly stated and applied in Ubamaka at [42]-[44] and in GA at [58].  On the application of that principle, the appellants simply cannot rely on the ICESCR unless they can show that its provisions have been incorporated into domestic legislation.

75.  Where it is said that a provision of an international treaty has been incorporated into domestic legislation, then it is largely a matter of statutory construction to determine whether it has actually done so and to what extent: see GA at [60(2)].

76.  In the present case, the appellants contended that ICESCR 10 was domesticated through BL 37 and the BOR (by BOR 19 and 20) and relied on the statement of the Government of the HKSAR to this effect.[39] Relying on those statements of the Government of the HKSAR, the appellants advanced a further argument that they had a legitimate expectation that restrictions on their rights under ICESCR 10 would be fully justified in accordance with the provisions of ICESCR 4.[40]

77.  Even accepting that the provisions of ICESCR 10 have been incorporated into domestic legislation through BL 37, BOR 19 and BOR 20, as explained above, those rights, properly construed, are subject to the immigration reservation in section 11 and therefore reliance on ICESCR 10 cannot give the appellants any greater rights than under those provisions so construed.  It is an established principle that “any legitimate expectation has to give way to contrary statutory provisions”: see Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR 1 at [132].  In the present case, there can be no greater expectation than that arising under the provisions of BL 37, BOR 19 or BOR 20, all of which are qualified by section 11.  This excludes the appellants’ reliance on ICESCR 10 whether directly or indirectly by way of legitimate expectation.

E.2    CRC 3

78.  Similarly, the appellants’ reliance on CRC 3 does not assist them.  The CRC, like the ICESCR, is an unincorporated international convention and, on the dualist principle, does not give rise to any enforceable rights or obligations.

79.  Insofar as the provisions of CRC 3 are said to have been implemented through BL 37 or provisions of the BOR, those rights are all subject to section 11 and, in the context of the immigration decisions under challenge, are excluded.  As a matter of construction, CRC 3 could not be relied on to extend the ambit of those rights which, interpreting the Basic Law as a coherent whole, are subject to section 11.

80.  In any event, the Government of the PRC, when notifying the Secretary-General of the United Nations that the CRC would apply to the HKSAR, declared that:

“The Government of the People’s Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region to enter and remain in the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time.”[41]

81.  That reservation, which is in very similar terms to that entered in respect of the ICCPR as reflected in section 11, would clearly preclude reliance on CRC 3 to defeat the application of immigration legislation to the decision to refuse to permit the appellant mothers to remain in the HKSAR.  The appellants’ submission that the above reservation is limited in its scope to the appellant mothers, who do not have the right to enter and remain in Hong Kong, but not the appellant children, who do have such rights, is inconsistent with the reservation construed as a whole.

82.  The appellants’ reliance on the approach of the UK Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department[42] does not assist the appellants since a reservation entered by the UK Government in respect of the CRC similar to that entered in respect of the HKSAR was lifted in 2008 and led to the introduction of section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that the Secretary of State must ensure that functions in relation to immigration “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.  The position in Hong Kong is materially different since the reservation to the CRC remains in place.

83.  The appellants’ further argument seeking to rely on a legitimate expectation that the “interests of the child are primary in the formulation and dispensation of all legislation and policies relating to or affecting children”[43] faces the same difficulty as that in respect of ICESCR 10.

E.3    Common law rights

84.  The appellants also relied on the common law principle of the best interests of the child in support of their case that the Director had a duty to take the position of the children into account when making immigration decisions in respect of their mothers.  This common law principle, the appellants argued, in reliance on Rbani, was not affected by section 11. 

85.  There are a number of difficulties with that argument.

86.  The common law principle of the best interests of the child is one which operates in the context of custody and wardship issues: see, for example, the case of Re G (A Minor)[44] cited by the appellants in their printed case.[45] It has no application in the immigration context in relation to decisions concerning the entry, stay or departure of family members. 

87.  Rbani does not assist the appellants in this regard.  In that case, the Court considered challenges to the applicant’s immigration detention pending the execution of a removal order.  Those challenges were made on the basis of constitutional arguments and traditional judicial review grounds relying on the common law Hardial Singh principles concerning the power to detain.  The Court rejected the constitutional argument on the basis of the effect of section 11 precluding reliance on BOR 5 or BL 28.  In respect of the common law complaint, however, the Court held, at [98]:

“As we have seen, section 11 does not preclude persons who come within its terms from relying on the common law right to personal freedom and to protection against arbitrary arrest or detention. Nor does section 11 preclude such persons from relying on Chapter III and Bill of Rights guarantees in respect of legislation other than ‘immigration legislation governing entry into, stay in and departure from Hong Kong’.”

88.  There are no comparable common law rights available to the appellants in the present case.

89.  Customary international law was relied upon in passing in the appellants’ printed case but was not pursued and requires no further discussion.

F.     Conclusion

90.  For the above reasons, we would dismiss the appeals.  The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11.  His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.  However, the appellants’ challenges to the Director’s decisions on such traditional judicial review grounds have failed and are not pursued on these appeals.

91.  We would add, however, that the availability of the traditional judicial review jurisdiction over the decisions of the Directors demonstrates the unsustainability of the appellants’ concluding submission in reply that, if the Court were to dismiss the appeals, there would be a “rule of law deficit”.  That submission is, with respect, extravagant and potentially misleading.  There is no rule of law deficit in the context of this case or otherwise.  The Director does not enjoy an unfettered discretion in making immigration decisions.  On the contrary, as the jurisprudence of the Hong Kong courts amply demonstrates, the Director’s exercise of discretion is subject to review.  That the appellants are unable to rely on particular rights because of a decision by the drafters of the Basic Law to make those rights subject to the immigration reservation reflected in section 11 does not amount to a “rule of law deficit”. 

92.  We would direct that any submissions as to costs be lodged in writing within 14 days after the handing down of this judgment to be dealt with on the papers.

Mr Justice Stock NPJ:

93.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ.

Mr Justice French NPJ:

94.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Fok PJ.

Chief Justice Ma:

95.  For the above reasons, the appeals are unanimously dismissed and a direction is made as to the costs as set out in paragraph [92] above.