LAU KONG YUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

CACV 108 & 109/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 108 & 109 OF 1999

(ON APPEAL FROM HCAL NOS. 20 & 21 OF 1999)

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J U D G M E N T

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Chan, CJHC :

1. These appeals arise from two actions commenced by these 17 appellants and another applicant (who had withdrawn from the proceedings) against the Director of Immigration. In the first action (HCAL No.20 of 1999), the appellants sought an order of certiorari quashing the decisions of the Director to remove them from Hong Kong and to detain them pending such removal; an order of prohibition prohibiting the Director from executing the removal orders made against them; an order of mandamus requiring the Director to specify in a notice in the Gazette the manner in which they might apply for a certificate of entitlement; and other declarations including a declaration that these appellants were permanent residents of the Hong Kong Special Administrative Region by virtue of Article 24(2) of the Basic Law. In the second action (HCAL No.21 of 1999), the appellants asked for writs of habeas corpus to issue to enable their immediate release from detention by the Director.

Appellants' claims

2. The appellants' respective cases are quite similar to one another. All of them were born in the Mainland. Four for them are under the age of 18 (A1, A2, A6 and A12) and the others are over 18. They all claim to have at least one parent who is a permanent resident of Hong Kong. Twelve of them were born before one of their parents became a permanent resident; 2 of them (A10 and A14) were born after one of their parents became a permanent resident but before 1 July 1987 and 3 of them (A1, A6 and A12) were born after one of their parents became a permanent resident and after 1 July 1987.

3. All the appellants (except A12 and A14) came to Hong Kong from the Mainland by means of two-way permits. The 12th appellant came here illegally. The 14th appellant went from the Mainland to Singapore and then came to Hong Kong as a visitor. All the appellants have relatives residing in Hong Kong. Apart from A12 (who had not been granted permission to land when she came), all the appellants had overstayed in breach of their conditions of stay granted by the Director. Shortly after the Court of Final Appeal had given its judgments on 29 January 1999 in Ng Ka Ling & others v Director of Immigration [1999] 2 HKCFAR 4 and Chan Kam Nga & others v Director of Immigration [1999]2 HKCFAR 82, these appellants claimed to be permanent residents of Hong Kong under Article 24(2) of the Basic Law. The Director made removal orders against them saying that they had failed to establish their status by means of certificates of entitlement. They were arrested and detained pending removal to the Mainland. They commenced the present proceedings. The trial judge dismissed their actions and these are the appeals from that decision.

Basis for the removal orders

4. The removal orders which were issued by the Director against all the appellants and which are the subject matter of these proceedings were in the following terms:

"Whereas it appears to me that (ABC) is contravening or has contravened a condition of stay in respect of him; in the exercise of the powers conferred by section 19(1)(b) of the Immigration Ordinance (Chapter 115), I hereby make a removal order requiring the said person to leave Hong Kong."

5. Each of the removal orders was accompanied by a Summary of Facts and Reasons for removal. The Reasons for removal were stated to be as follows:

"(ABC) has contravened his condition of stay by overstaying in the Hong Kong Special Administrative Region since (date) and his status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."

6. The Summary of Facts in respect of all the appellants except A15 and A16 contained the following paragraph :

"Though (ABC) was born in the Mainland of China to his Hong Kong permanent resident father, (DEF), his status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."

7. In respect of the removal orders made against A15 and A16, the relevant paragraph in the Summary of Facts used a different wording which made it clear that it was merely the assertion of the applicants that they were born of parents who are permanent residents.

8. There was a dispute before the trial judge as to whether the Director had, in the above paragraph contained in the Summary of Facts, already accepted the permanent resident status of the appellants except A15 and A16. There was evidence, which the trial judge accepted, to the effect that the Immigration staff were only concerned as to whether the appellants could establish their claims for permanent resident status under the third category of Article 24(2) of the Basic Law by the production of certificates of entitlement and that they did not find it necessary to make any findings of fact on the appellants' claims to have the relationship of parent and birth child with a Hong Kong permanent resident. In other words, there had been no verification by the Immigration staff of the claimed relationship of the appellants, whether on the documents produced or otherwise. The trial judge held that there was no acceptance by the Director as to the status of any of these appellants. There is no appeal against this finding of fact. Ms Gladys Li SC for the appellants indicates that this does not have any significance to her case in these appeals.

9. However, such evidence shows that what the Immigration staff had done was only to inquire whether the appellants had any certificate of entitlement and that they had not examined the documents or other evidence adduced by the appellants in support of their claims for permanent resident status or made any finding of fact from such materials. This was the basis for the making of the removal orders in the present case.

Main contentions

10. Ms Li SC, leading Ms Margaret Ng, for the appellants submits that the principal issue in these appeals is : whether the Director may lawfully order the removal from Hong Kong and the detention pending that removal of a person who claims to be and can establish that he is a permanent resident by refusing to examine that person's claim and the materials adduced in support of the claim on the ground that the person does not have a certificate of entitlement. It is submitted that the Director cannot do so.

11. Ms Li's main argument is that the Director is under a duty to consider the merits of each of the appellants' claims when he is contemplating the removal of the appellants. Such duty is said to arise in this way. First, the appellants are conferred by the Basic Law the status of permanent resident and the right of abode in Hong Kong. No person with the status of permanent resident can be removed. The Director is therefore obliged under the Basic Law to consider their claims to such status and right before making the removal orders against them. In refusing to consider the materials adduced by the appellants and insisting on the production of certificates of entitlement, the Director has failed this constitutional obligation and has infringed the right of those persons who are in fact permanent residents. Secondly, as a result of the decisions of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga, there is no lawful or applicable scheme whereby these appellants can apply for certificates of entitlement. Hence, the Director cannot lawfully rely on the absence of a certificate as his basis for removal but is under a duty to consider the merits of each of the appellants' claims. Thirdly, the enjoyment of the right of abode as set out in s.2A(1) of the Immigration Ordinance is, according to the CFA decision in Ng Ka Ling, not subordinate to any provision. The Director has a duty to verify the status of a person claiming to be a permanent resident even if the claim is put forward in a manner which do not comply with the prescribed procedure.

12. Counsel's second argument is that the Director cannot rely on the provisions of the Immigration Ordinance as precluding him from examining the claims of the appellants. First, Part 1B of the Ordinance which was introduced by the No. 3 Ordinance only applies to persons falling within paragraph 2(c) of Schedule 1 to the Ordinance. Since part of paragraph 2(c) was held by the Court of Final Appeal to be unconstitutional in Chan Kam Nga, the whole basis of the scheme in Part 1B had disappeared. The Director cannot rely on s.2AA or any other provision in Part 1B. The Court of Final Appeal did not address the issue of whether the unconstitutional words in paragraph 2(c) were as a matter of law severable. What the Court did was striking down the whole of section 2AA leaving no peg for the No. 3 Ordinance to hang on. Secondly, most of the appellants did not fall within the original paragraph 2(c) of Schedule 1. They would be in the same position as those persons who arrived in Hong Kong before the enactment of the No. 3 Ordinance. Since they are permanent residents, they had the right to enter and remain in Hong Kong prior to the CFA judgment when Part 1B did not apply to them. It would not be right to apply such provisions retrospectively on them. They now have the right to remain since they are permanent residents and the scheme is not applicable to them.

13. Counsel also submits that the appellants cannot be removed. First, the appellants are permanent residents and are not subject to removal. They do not cease to be permanent residents through failure to assert or prove their rights. The Director cannot remove the appellants unless he is satisfied on the materials put before him that they are subject to removal. Secondly, since the appellants can produce materials which can establish to the satisfaction of the Director their permanent resident status, the Director cannot remove them from Hong Kong without examining their materials. The appellants, counsel submits, are not arguing that the making of the application gives them the right to remain pending decision. They are relying on the right to remain which is their inherent right as permanent residents. In other words, the appellants are not in a situation where the Director's decision is pending. Thirdly, since the Director has not specified any scheme whereby the appellants can apply for certificates of entitlement, he cannot rely on the consequences of the scheme by invoking s.2AA and removing the appellants.

14. It is contended that the judge was wrong to say that in issuing the removal orders in question, the Director need only see whether the appellants had certificates of entitlement and not whether they were the children of Hong Kong permanent residents. The judge was also wrong to hold that the Director would not be acting within the law to accept the appellants' status without certificates of entitlement. The Director has addressed his mind to the wrong question by asking for proof by certificate of entitlement instead of asking whether the appellants are removable as a matter of law and fact. The judge was wrong to uphold such an approach.

15. Mr Geoffrey Ma SC, leading Mr Joseph Fok SC, for the Director, submits that the effect of the Court of Final Appeal decisions is that permanent resident status can only be established by the possession of a certificate of entitlement. The Court also upheld the constitutional parts of the scheme which is the only scheme available. It would not be lawful for the Director to entertain any application for the establishment of a status other than according to the scheme. The trial judge was correct to say that it would not be lawful for the Director to do anything other than to comply with the provisions of the Immigration Ordinance.

16. It is further submitted that the No.3 Ordinance as affected by the CFA decisions applies to these appellants. Under the provisions of that Ordinance, including s.2AA(2) and s.2AB(5), the appellants have no entitlement to be in Hong Kong pending the application for a certificate of entitlement and they are liable to be removed. Pararaph C of the notice gazetted by the Director treated the appellants as still residing in the Mainland. The appellants have failed to differentiate between the enjoyment of the right of abode and the establishment of that right. There is clearly no enjoyment without the status having been established. This is provided in the legislation and confirmed by the judgments of the Court of Final Appeal.

17. Counsel submits that the trial judge had accepted that the design of a new scheme would be a complicated and difficult matter and that this would take time. It would not be feasible for the Director to design an interim scheme as this might be contrary to the provisions of the Immigration Ordinance and might not be fair and reasonable.

18. The present appeals arise from the judgments of the Court of Final Appeal and both parties in support of their respective contentions purport to rely on those decisions. It is therefore important to examine the original legislation creating the verification scheme and the effect of the CFA decisions on such scheme.

Original scheme

19. Article 24(2) of the Basic Law provides that 6 categories of people shall be permanent residents of the HKSAR and have the right of abode in Hong Kong. In the present case, we are only concerned with the third category. The Immigration (Amendment) (No.2) and (No.3) Ordinances were enacted on 1 and 10 July 1997 respectively to provide for a scheme of verification for persons falling within this category. Pursuant to the No. 3 Ordinance, the Director also published a notice in the Gazette on 11 July 1997 setting out the manner in which the scheme was to operate. This scheme was in line with the practice which had been in place for some time prior to 1 July 1997.

20. One of the bases of this scheme was that Article 22(4) was linked to Article 24(2), that is to say, Article 24(2) was subject to Article 22(4). Another basis was that the third category in Article 24(2) only covered persons born to parents who had acquired permanent resident status at the time of their children's births. This was reflected in paragraph 2(c) of Schedule 1 which was introduced by the No. 2 Ordinance. The main features of the scheme were as follows:

(1) a person's status of permanent resident within paragraph 2(c) of Schedule 1 could only be established by a certificate of entitlement which must be annexed to a one-way permit issued by the Mainland Exit Entry Administration. A certificate of entitlement alone was not sufficient to establish a person's status;

(2) a person residing in the Mainland would have to apply to the Director for a certificate of entitlement through the Exit-Entry Administration in the district where he was residing and his application for the issue of a one way permit would be treated as an application for a certificate of entitlement;

(3) if a person was physically in Hong Kong, he would be regarded as still residing in the Mainland for the purpose of the scheme. Before he was issued a certificate of entitlement with a one-way permit annexed thereto, he shall be regarded as not enjoying the right of abode.

Effect of CFA decisions on the scheme

21. This scheme was examined by the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga . The Court held that Article 24(2) is not subject to Article 22(4) and that there is no "constitutional basis for limiting rights conferred by the Basic Law." See p.36E in Ng Ka Ling. It also held that those words in paragraph 2(c) of Schedule 1 which purported to restrict the scope of the third category in Article 24(2) to persons who were born after their parents had become permanent residents are unconstitutional. See page 92I in Chan Kam Nga. As a result of these conclusions, persons who were born before their parents had acquired permanent residents status are also included. Certain parts of the original scheme set up by the No. 3 Ordinance were declared to be unconstitutional as contravening the provisions of the Basic Law. The requirement of one-way permits to be issued by the Exit Entry Administration before permanent residents residing in the Mainland can enjoy their right of abode was abandoned. However, the Court of Final Appeal upheld the other aspects of the scheme. It is important to note the opinion of the Court on these other aspects. I would summarise those parts of its opinion which are relevant to these appeals as follows:

(1) it is reasonable for the legislature to introduce a scheme which provides for the verification of a person's claim to be a permanent resident;

(2) the scheme introduced by the No. 3 Ordinance, apart from the requirement of one way permits, is constitutional as it cannot be said to go beyond verification. It is constitutional

(a) in requiring a claimant to apply for and obtain a certificate of entitlement from the Director, and

(b) in providing that his status as permanent resident can only be established by his holding such a certificate.

(3) The provisions of the scheme whereby a person must stay in the Mainland whilst applying for such a certificate and whilst appealing against any refusal of the Director to issue a certificate are also constitutional.

(4) The Director must operate the scheme lawfully in a fair and reasonable manner. There must be safeguards to which its operation is subject and the requirement of reasonableness must be imported into a number of provisions for operating such a verification scheme.

Any applicable scheme for Mainland residents

22. Although the Court of Final Appeal approved the certificate of entitlement scheme as the only scheme of verification, its "excision" of the unconstitutional parts in the two Ordinances had resulted in a gap in the scheme and created a problem for the Director. According to the scheme as affected by the CFA decisions, a person's status as a permanent resident under paragraph 2(c) of Schedule 1 (which, without the unconstitutional words, is the same as the third category in Article 24(2)) can only be established by his holding a certificate of entitlement (s.2AA(1)). Any person who claims to have such status may apply to the Director for a certificate of entitlement (s. 2AB(1)). An application must be made in such manner as the Director may specify in a notice in the Gazette (s.2AB(2)). Any application which is not made in accordance with the manner specified by the Director shall not be accepted (s.2AB(3)).

23. The Gazette notice issued by the Director under s.2AB(2)(a) on 11 July 1997 was also considered by the Court of Final Appeal, although it is provided in s.2AB(4) that the notice is not subsidiary legislation. The Court considered that certain parts of this notice which required the obtaining of one way permits was not justified and they were therefore struck down. These included paragraph A(i) which provided that if a person was at the time of application residing in the Mainland, he must make his application to the Director through the Exit-Entry Administration in the Mainland. Paragraph B was also excised. It provided that for these persons, an application to the Exit-Entry Administration in the Mainland shall be treated as an application for a certificate of entitlement.

24. The result of this "excision" is that unless and until the Director issues another notice in the Gazette, there is no specific manner in which persons residing in the Mainland can apply for a certificate of entitlement. The Court of Final Appeal was mindful of the gap which was created. At page 38H of Ng Ka Ling , it made the following suggestion:

"This leaves a gap in the Notice as to whom an application for a certificate of entitlement should be made by a Mainland resident. The Director would have to specify a new arrangement for them by notice. It is unobjectionable if it has to be made to an entity on the Mainland provided that it functions as an agent of Hong Kong's Immigration Department to facilitate applications for certificates of entitlement. Whether the Mainland Exit-Entry Administration is an appropriate entity for this purpose is for the Director and that Administration to consider."

25. For various reasons, this has so far not been achieved by the Director.

Possibility of application in Hong Kong

26. The possibility of making an application while a person is in Hong Kong is less than clear. The intention of the original scheme was clearly that this would not be allowed. There are obviously policy reasons for this . The Court of Final Appeal did not expressly deal with this. However, it favoured the retention of paragraph C of the notice which provides :

C. For the purpose of making an application for a certificate of entitlement or certified duplicate : -

(i) a person who stays in Hong Kong without the authority of the Director of Immigration after landing in Hong Kong without the permission under section 11(1) of the Immigration Ordinance and was ordinarily resident in the Mainland of China immediately before such landing shall be regarded as residing in the Mainland of China during such stay in Hong Kong; and

(ii) a person who has been given permission under section 11(1) of the Immigration Ordinance to land in Hong Kong and is subject to the conditions of stay specified in Regulation 2(1) or (2) of the Immigration Regulations during his stay after such landing and was ordinarily resident in the Mainland of China immediately before such landing shall be regarded as residing in the Mainland of China during such stay in Hong Kong.

27. Ms Li submits that since s.2AB(4) expressly provides that the notice is not subsidiary legislation, it is wrong for the trial judge to rely on it as having the force of law. On the other hand, Mr Ma argues that it does have the force of law as principal legislation by virtue of s.2AB(2)(a). In my view, the notice either has the force of law or is meant for reference only. But it is certainly arguable that the contents of the notice are much more than for reference only. This is because s.2AB(2)(a) incorporates the notice into that subsection by reference and s.2AB(3) provides that any application which is not made in accordance with the manner specified in the notice shall not be accepted. Non-compliance with the notice by an applicant will thus have the possible serious consequence of that applicant being excluded from the scheme. If the notice has legal effect but is not subsidiary legislation, what can it be? Can it be regarded as principal legislation ? However, I should think that it is most unusual for a document to have the force of law if it does not have to go through the legislative process either as a piece of principal legislation or subsidiary legislation and can apparently be changed at the discretion of the Director. Without hearing further arguments, I am not prepared to draw any definite conclusion on this point. For the purpose of these appeals, I do not think it is necessary to do so. I am content to regard the notice as tending to show that the intention of the original scheme was not to allow applications to be made in Hong Kong.

28. From the judgment of the Court of Final Appeal in Ng Ka Ling and its express retention of paragraph C of the notice, it would seem, in my view, that it is unlikely that the Court of Final Appeal would find it objectionable to have a scheme whereby Mainland residents can only apply while they are in the Mainland. Whatever the legal effect of paragraph C, it is not clear whether a person who is physically present in Hong Kong can apply for a certificate of entitlement now that the requirement of one way permits had been ruled to be unconstitutional. However without any clear provision in the legislation or the notice prohibiting the making of an application while a person is in Hong Kong, there will always be attempts to do it while in Hong Kong.

Whether Part 1B of Ordinance applies to appellants

29. The Basic Law only took effect on 1 July 1997 which was the earliest date from which any person could claim permanent resident status under the third category in Article 24(2). The No.3 Ordinance which provides a machinery for verifying claims for permanent resident status was enacted on 10 July 1997 purporting to take effect on 1 July 1997. According to paragraph 2(c) of Schedule 1 as it stood before the CFA decisions, those appellants who were born before their parents became permanent residents or before 1 July 1987 when the right of abode was first defined were not eligible and could not apply for a certificate of entitlement. They could not have done so until after 29 January1999 when the Court of Final Appeal held that that part of paragraph 2(c) of Schedule 1 which purported to qualify the third category of Article 24(2) was unconstitutional.

30. Ms Li suggests that the Court of Final Appeal in Chan Kam Nga did not merely excise those words in paragraph 2(c) of Schedule 1 which are unconstitutional but had in fact struck down the whole of this provision leaving no peg for the No. 3 Ordinance which should not therefore be applicable to the appellants. With respect, I do not agree. First, the Court of Final Appeal consisting of the same members heard the Chan Kam Nga case immediately after the Ng Ka Ling case. In both cases, one of the issues was the constitutionality of certain amendments to the Immigration Ordinance. In Ng Ka Ling, the Court performed a "blue-pencil" exercise in respect of the No. 3 Ordinance and upheld the constitutional parts of that ordinance. It would be difficult to argue that the same court which delivered another unanimous judgment immediately thereafter was not performing a similar exercise for the No. 2 Ordinance. Secondly, if the Court had taken the view that the whole of paragraph 2(c) of Schedule 1 was bad, it would have clearly said so. On the contrary, there was every indication that Bokhary PJ meant only an excision of those words which are unconstitutional. On page 92 of the judgment, he referred to the additional words which appeared in paragraph 2(c) of Schedule 1 but which did not appear in Article 24(2). He said that the time of birth limitation in that paragraph was irremediably unconstitutional and null and void. He granted a declaration that those "additional words" contravened Article 24(2) of the Basic Law and were unconstitutional and null and void. Thirdly, the Court of Final Appeal in Chan Kam Nga would have been well aware of its earlier decision in Ng Ka Ling in which it upheld other aspects of the scheme which was introduced by the No. 3 Ordinance and which was intended only for the third category of Article 24(2). If the Court in Chan Kam Nga had meant to strike down the whole of paragraph 2(c) of Schedule 1 leaving no peg for the No. 3 Ordinance, this would have rendered meaningless that part of the decision in Ng Ka Ling which approved the scheme. I do not think that that would have been the intention of the Court of Final Appeal in Chan Kam Nga.

31. In my view, the effect of a court declaring certain provisions of a piece of legislation as unconstitutional is that those provisions are null and void and have no legal effect. In the absence of any provision in the Basic Law or another law as to the effect of such declaration, the court does not repeal the unconstitutional parts and has no power to do so; it simply "blue-pencils" them. The result of the court declaration is that the Government cannot rely on or enforce those unconstitutional provisions. As the US Supreme Court said : "An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." (See Norton v Shelby County (1886) 118 US 425, 454.)

32. In the present case, the effect of the CFA decisions is that the unconstitutional parts in the No. 2 and No. 3 Ordinances are null and void and have no legal effect as from the dates on which these Ordinances were enacted. The Director could not enforce those parts against the litigants in the Ng Ka Ling and Chan Kam Nga cases. He cannot enforce or insist on compliance with those parts against any person who now claims to fall within the relevant part of the Basic Law. But the scheme which consists of the constitutional parts can still be enforced by the Director and must still be complied with. That scheme as affected by the CFA decisions remains to be the only scheme in force until it is amended, replaced or supplemented. That, in my view, was the clear intention of the Court of Final Appeal. There is no other scheme for the verification of claims under the third category in Article 24(2). The Director has a statutory obligation to enforce it.

33. I am therefore firmly of the view that Part 1B of the Immigration Ordinance as affected by the CFA decisions is applicable to the appellants.

34. It is accepted that prior to 29 January 1999, the appellants could not have made any application for a certificate of entitlement as their positions were not properly set out in the Ordinance in view of the unconstitutional provisions. Since 29 January 1999, the certificate of entitlement scheme applies to them except that with the excision of paragraph A(i) and B of the notice, there is no specified manner in which they can apply. However, I do not accept Ms Li's argument that since they are permanent residents and had the right to enter and remain in Hong Kong prior to the CFA judgments, the scheme under Part 1B is no longer applicable to them. Whether these appellants have the permanent resident status has yet to be verified. So long as their claims have not been verified, they have no right to enter or remain in Hong Kong and their presence here must be subject to immigration restrictions. If they now wish to assert their right under the third category in Article 24(2), they have to be subject to the scheme of certificate of entitlement provided in Part 1B of the Ordinance as affected by the CFA decisions.

Duty of the Director

35. The Government through the Director has the obligation to implement and enforce the provisions of Article 24 of the Basic Law. Persons who claim that they are permanent residents by virtue of the third category of Article 24(2) must have their claims verified before they can enjoy the right of abode in Hong Kong. The Basic Law does not make provision as to how this can be done. In order to discharge his constitutional duty, the Director is entrusted with the task of designing a scheme, operating it and enforcing it. He purported to perform this task by introducing the certificate of entitlement scheme with the statutory backing of the No. 2 and No. 3 Ordinances. This is to be the only available scheme. The Court of Final Appeal upheld the scheme except the unconstitutional parts involving the requirement of one way permits.

36. In my view, the operation of the scheme would involve the Director taking at least the following steps in respect of each application :

(1) to receive the application (either directly or through an agent, if one is authorised),

(2) to ensure that the application is presented properly and in accordance with the specified procedure, if any,

(3) to satisfy himself that the applicant is a permanent resident under paragraph 2(c) of Schedule 1 (the same as the third category in Article 24(2)) and

(4) to issue a certificate of entitlement if he is so satisfied.

37. Each of these steps would no doubt involve putting in place a reasonable and satisfactory arrangement to cope with the potentially large number of applications. According to the Court of Final Appeal, the Director has to act lawfully in a fair and reasonable manner. Whatever scheme is in place, it must be aimed at facilitating the verification of claims and not frustrating them. Unnecessary and unreasonable hindrance in the verification process would amount to frustrating or even denying a person of his right, if he can ultimately prove his status.

38. It is therefore quite understandable that the making of such a scheme is complicated and difficult. I would also accept that even working out an interim scheme would not be easy if it has to be lawful, fair and reasonable and probably also compatible with any long term scheme to prevent unfairness.

39. If there is a workable and comprehensive scheme, provided that it is consistent with the Basic Law, strict compliance is expected. The Director is obliged to refuse to accept any application which does not comply with the scheme. See s.2AB(3). In this respect, I do not agree with Ms Li's argument that since the appellants can show that they are permanent residents, the Director is still duty bound to verify an application even though it is made in a manner which does not comply with the prescribed procedure. If she is right, then every person who claims to be a permanent resident (and whose status may subsequently be confirmed) can simply ignore the scheme. In that case, no scheme would be workable.

40. The result of the CFA decisions is that at the moment, there is no specified manner in which persons residing in the Mainland can apply for a certificate of entitlement. It is also not clear whether a person while physically present in Hong Kong can apply here. In the absence of any new arrangement, be it interim or transitional, it does not mean that no application can be made by persons residing in the Mainland or in Hong Kong. Section 2AB only gives the Director the power to refuse to accept any application which is not made in accordance with the manner as specified in the notice published in the Gazette. Where he has not specified any manner, the Director cannot rely on such "default" to refuse to accept any application or to refuse to consider it. He cannot demand for the production of a certificate of entitlement which can only come about after the application has been considered . Since he has a duty to implement the Basic Law, he has an obligation to operate the scheme when it is in place and when it is not fully in place, he has an obligation to work diligently on a workable scheme. While I accept that the Director is entitled to have a reasonable time to work out a new arrangement, I do not think he can turn people away completely during the meantime. He either has to come up with a new arrangement expeditiously or he has to permit the making of applications which do not follow any specified manner because there is none.

41. After all, the Director is the officer to receive applications, the officer to vet applications, the officer who is to be satisfied with the claims for status and the officer who is ultimately to issue certificates of entitlement. He is duty bound to perform these duties. It is true that in discharging his duties, the Director must comply with Part 1B of the Ordinance which makes provision for all these matters. However, I can see no reason for saying that he is doing anything other than his duty if he is to entertain applications even when there is as yet no new and workable arrangement on how applications can be made. I can find nothing in the Ordinance which prohibits him from accepting applications, verifying them and if he is satisfied that they are well supported, issuing certificates of entitlement to the applicants other than in accordance with the specified arrangement which is now absent. I take the view that it is wrong to hold that the Director would not be acting within the law if what he is doing is to implement Article 24(2) of the Basic Law. It is wrong for the Director to refuse to consider the materials placed before him and to insist on the production of a certificate of entitlement when there is no specified manner to apply for one. He can only insist on having a certificate of entitlement as the only proof of status, if there is a specified procedure for obtaining it.

Any right pending verification

42. That the Director has a duty to entertain the appellants' applications is one matter. Whether these appellants and many others in the same position have the right to remain in Hong Kong pending application is an entirely separate and different matter.

43. Ms Li's argument is that since the appellants have materials which can show that they are permanent residents, they have the status and the inherent right to remain and thus cannot be removed. This argument, to adopt the language of the Court of Final Appeal, is based on a failure to differentiate between the enjoyment of the right of abode and the establishment of that right. If a person who has a status does not assert it or has failed to establish it, he will not and should not be afforded the rights which flow from that status. And before his status is established, he cannot be treated as having had such status and such rights. This is, apart from being common sense, expressly provided in the Ordinance. Section 2AA(2) provides that a person's right of abode can only be exercised upon the establishment of his status as a permanent resident by the obtaining of a certificate of entitlement and that where his status is not so established, he shall be regarded, for the purposes of the Ordinance, not enjoying the right of abode in Hong Kong. Section 2AB(5) makes it clear that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director with regard to his application. I need not rely on the controversial paragraph C of the notice which had apparently survived the CFA decisions. It goes further and deems an applicant who remains in Hong Kong in breach of a condition of stay as still residing in the Mainland.

44. The appellants came to Hong Kong not in the capacity of permanent residents. When they first entered, they did not (because they could not) assert that status. They came here on two way permits (except A12 who came here illegally). It is not disputed that the Director was then acting within his powers to impose a condition of stay in respect of each appellant. They were then content with the condition of stay. After the expiry of the periods of stay, they would be in breach of the condition of stay (which is an offence). They have no right to remain unless they can show that they are permanent residents under Article 24(2) of the Basic Law and therefore have the right of abode in Hong Kong. But their claims have to be verified. In my view, it is wrong for the Director to insist on the production of certificate of entitlement as proof of status and to make removal orders without examining the materials placed before him. But the fact remains that even if the Director is prepared to entertain their applications, they are still regarded as not having any right of abode or right to land or remain in Hong Kong until their claims have been verified. Before this happens, the Director has the power under s.19(1)(b)(ii) of the Ordinance to make removal orders against them. Their position is not any better whether the Director has specified any manner in which they can make their applications, if he is prepared to consider their claims for permanent resident status.

45. Ms Li relies on R v Secretary of State for the Home Department, ex part Phansopkar, [1976] 1 QB 606 in arguing that the appellants cannot be removed. With respect, I am unable to derive any assistance from that case which is clearly distinguishable on the facts.

46. The Director clearly has a discretion when he is contemplating making a removal order under s.19(1)(b)(ii). He must exercise his discretion carefully and on a case-to-case basis. He must have regard to all the circumstances of each case. If it is a Hong Kong permanent resident who has forgotten to carry his Permanent Identity Card with him or he is a new born child born in Hong Kong waiting for the issue of a birth certificate, the matter would be simple and straightforward. When it comes to the verification of the status of permanent resident of a person who has hitherto not established his status, the Director's task would be more complicated. He must take into account all the circumstances which include the following: is the claim made according to the statutory scheme if it is in place, what is the nature of the claim, what is the nature and quality of the supporting materials, what are the steps required to verify these materials, whether it will involve any assistance from the Mainland authorities to verify the materials, how much time is required to verify such claim and the personal circumstances of the applicant. In some cases, the Director may have to take into consideration policy matters such as the number of possible similar applications, whether the applicant has come illegally or has remained in breach of condition of stay and the integrity of the statutory scheme. If the Director decides to allow every such applicant to remain in Hong Kong pending verification of his claim, this may encourage other people, whether they are genuine applicants or not, to come to Hong Kong by every possible means, whether legal or illegal. In that case, the whole certificate of entitlement scheme will break down. This would also defeat the purpose of an orderly settlement in Hong Kong of persons residing in the Mainland who fall within the third category of Article 24(2). In fact, if he is not alert to all these factors, he would be failing his duty in the implementation of Article 24(2) of the Basic Law.

Removal orders in this case

47. For the reasons stated above, I have come to the conclusion that (1) the Director should not have insisted on the production of certificate of entitlement without considering the appellants' materials before making the removal orders but that (2) before their applications have been verified, the appellants are not entitled to remain in Hong Kong and may be subject to immigration constraints. However, can the removal orders made against them still stand ?

48. The reason for making the removal orders is stated to be that the appellants are in breach of their conditions of stay. That of course is the state of affairs which gives rise to the making of the orders under s.19(1)(b)(ii) of the Ordinance. The real reason why they were not allowed to remain in Hong Kong is because the Director was not satisfied that they had any right to do so due to their failure to establish their permanent resident status by holding certificates of entitlement. If the Director was wrong to come to that conclusion because he had not considered the materials placed before him, then the basis for the removal orders cannot stand. The removal orders must be discharged and the appellants must be released. It follows that the decisions to detain them must also be quashed. But as there is not yet any decision on their applications for permanent resident status, they have no right to remain and they are still overstayers (or an illegal entrant in the case of A12). Each of them may still be subject to another removal order which the Director has the power to make after a proper exercise of his discretion under s.19(1)(b)(ii).

Other relief sought by appellants

49. Since the removal orders and the decisions to detain them are quashed, an order prohibiting the Director from executing the removal orders against them is not necessary.

50. The appellants also seek an order of mandamus requiring the Director to specify by a notice in the Gazette the manner in which applications can be made by residents who are not in Macau or Taiwan and a declaration that the Director has acted unlawfully in failing to do so. I am satisfied, as the trial judge was satisfied, that the Director is actively preparing a new and workable arrangement and conducting negotiations with the Mainland authorities and that all this will take time. In the circumstances, I do not think it is appropriate to grant this relief.

51. Each of the appellants is also asking for a declaration that he is a permanent resident under paragraph 2(c) of Schedule 1 and that he is entitled to have a permanent identity card issued to him. Although in a rare case, the court may have the power to grant such relief (and Ms Li asks this Court to do so), I do not think that in the circumstances of this case, this Court is in a position to assess and verify the appellants' claims for status. This relief is refused.

52. Finally, the appellants also ask for a declaration that Part 1B of the Immigration Ordinance does not apply to them. I have in the earlier part of this judgment concluded that it does.

Conclusion

53. For these reasons, I would allow the appeals to the extent as follows. I would quash the removal orders made against these appellants and the decisions to detain them pending removal. I would order that they be released. But this is without prejudice to the Director making a fresh removal order against any one of them upon a proper exercise of his discretion under the provisions of the Immigration Ordinance. The other relief is refused.

54. There have been some criticisms of these appellants. It has been said that they have taken advantage of the gap in the certificate of entitlement scheme left open by the CFA decisions and have tried to benefit from the fruit of their own offence in coming here illegally or by overstaying. It has also been said that they are trying to jump the queue of thousands of applicants who are still residing in the Mainland. On the other hand, all these appellants (and I believe there are many more others in a similar situation) have applied to come to Hong Kong for years (albeit not under the certificate of entitlement scheme). Most of them have waited for over 10 years and one for as long as twenty-five years. After all, if their status can ultimately be established, they would become part of our community. I would not like to pass any moral judgment on them. It is not the business of the court to do so. As Ms Li said, they are not asking for sympathy. They are seeking the protection of the law which is available to them, whether they are permanent residents or not. If the Director has not acted according to the law in making the removal orders against them, they should have their grievances redressed. If, on the other hand, they do not have the right to remain, they may be subject to removal orders.

55. The right of abode issue has aroused unprecedented controversy in Hong Kong. Unfortunately, it has become quite divisive and regrettably, this is likely to continue. It is hoped that this will not cause any serious harm to our society.

Nazareth V-P:

Introductory

56. The Chief Judge has fully set out the factual background, the legal framework, the issues and the submissions. I am able, therefore, to go direct to the matters in contention. The issues are not defined in the same way by the two sides. The formulation of the principal issue by Ms Gladys Li SC for the appellants, appears to require the determination by the Director of the appellants' claim to permanent resident status or the right of abode this implies. That impression was strengthened by the three issues identified by Mr Geoffrey Ma SC, in that two of them are concerned with the appellants' entitlement to be or remain in Hong Kong. Likewise, they are strengthened by Ms Li's contention, which appears in several of her submissions, that a permanent resident has an inherent right to that status which does not depend upon its verification, or a claim to it being made. However in her submission in reply, she made it clear that what the appellants are seeking is to have the Director's decision, to remove and to detain pending removal, quashed on the ground that the Director had not addressed the right question and in consequence failed in the exercise of his discretion to take all the circumstances into consideration. Ms Li added that the appellants were not seeking the determination of their claim to permanent resident status; and that the claims had already been decided by the Director on the basis of the absence of certificates of entitlement. Indeed, it was upon the determination of that matter, she explained that the Director had made his decision to remove the appellants and to detain them for that purpose.

57. The foregoing would mean that only one issue has to be decided: Whether the Director's decision to detain and remove the appellants should be upheld. Ms Li accepted that the Director could for such purpose take a preliminary view of an appellant's claim to permanent resident status without actually deciding it. That single issue, as will be seen can be very simply resolved and without addressing most of the several issues and points raised in the submissions. Nonetheless, given that the declarations and orders of mandamus sought in the Notices of Appeal were not actually abandoned, and that it may be that Ms Li's foregoing clarification was intended to be confined to her argument for quashing the removal orders, I propose to address also the other matters in issue as detailed by the Chief Judge. However, in the light of the foregoing and as Ms Li did not appear to press her submissions on the other matters very strongly, I propose to address them briefly.

58. I turn then to address those matters. In doing so I adopt the Chief Judge's outline of the facts, legal framework, issues and submissions.

Permanent resident's inherent rights

59. Ms Li's contention that a permanent resident has an inherent right of abode, is made in more than one of her submissions, but primarily in that which asserts that the appellants are entitled to enjoy the rights and protection of permanent residents even if their status has not been verified or accepted, and that they thus cannot be removed. Moreover, that the Director has a duty to consider their claims to permanent resident status.

60. I cannot accept this contention. Logic and reality seem to me to require its rejection. But if legal authority for rejection is sought, it is to be found in the statement of the Court of Final Appeal at p.36F of Ng Ka Ling that "One must distinguish between a permanent resident who enjoys the right of abode on the one hand and a person claiming to be a permanent resident on the other hand".

Effect of the CFA decisions

61. This topic embraces the respondent's main response to Ms Li's second argument. The latter can be put this way, i.e. that the striking out of paragraphs A(i) and B of the Director's Notice leaves the Scheme incomplete and unworkable so that the Director cannot rely upon the Scheme to either refuse or to consider claims to permanent resident status, or to make orders of removal and detention pending removal. Mr Geoffrey Ma's response is the opposite; indeed he relies primarily upon the effect of Ng Ka Ling and others v Director of Immigration [1999]2 HKCFAR 4 and Chan Kam Nga and others v Director of Immigration [1999]2 HKCFAR 82 as continuing to sustain the remaining part of the certificate of entitlement scheme ("the Scheme") and the related provisions of the Ordinance which were not struck down. Their effect, he says, is that claims to permanent resident status can only be determined by reference to possession of certificates of entitlement, that pending verification claimants have no entitlement to remain in Hong Kong, and that applications by Mainland residents have to be made in the Mainland - in each case, regardless of the continuing "gap", i.e. the absence of any specification of whom applications for verification of permanent resident status should be sent to. The competing submissions here involve several matters, to which I now turn.

The Director's Notice

62. In relation to the Scheme, s.2AB(2)(a) of the Immigration Ordinance, Cap. 115 provides that application for a certificate of entitlement by inter alia claimants to permanent residents status "shall be made in such manner as the Director may specify by notice in the Gazette". Section 2AB(4) provides that a notice under s.2AB(2)(a) "is not subsidiary legislation". The Court of Final Appeal in Ng Ka Ling (at p.36H) struck out paragraphs A(i) and B of the Director's Notice as unconstitutional. Paragraph C, however, was not touched. Sub-paragraphs (i) and (ii) thereof in broad terms provide that illegal entrants who stay without permission, and persons subject to certain conditions of stay, who came from the Mainland, shall be regarded as resident in the Mainland during their stay.

63. Mr Ma relies upon paragraph C in support of his submission that the appellants have no right to remain in Hong Kong. Presumably prompted by the provision that such a notice is not subsidiary legislation, he submits that the Director's Notice is to be regarded as principal legislation. By "principal legislation" he presumably means legislation that is not delegated legislation, or to use the usual Hong Kong expression, that is not subsidiary legislation. In effect what he says is that the Notice should be regarded as an Ordinance. In this context, the definition of "subsidiary legislation" in s.2 of the Interpretation and General Clauses Ordinance (Cap. 1) is not particularly helpful in embracing virtually all the well-known labels attached to the different forms of subsidiary legislation, including notices, the designation chosen in s.2AB(2)(a) and faithfully used by the Director. The purpose of providing that it is not subsidiary legislation was presumably to avoid the risk that the Legislative Council might amend the Notice under s.34 of Cap. 1 and it is this strategy that has unhappily created the occasion and scope for the competing submissions.

64. Ms Li for her part submits that not being subsidiary legislation the Director's Notice cannot have effect. I cannot accept that submission. The Notice is expressly authorised by a provision of an Ordinance that displaces the effect of the more general provisions of the Interpretation and General Clauses Ordinance (see s.2(1)). So the Notice must in that respect have effect, unless e.g. it is ultra vires or conflicts with other legislation, principal or subsidiary, that prevails. That is not suggested here. In the same way, if it be thought that the Legislative Council has somehow been improperly bypassed with consequences for the validity of the Notice, s.2AB(4) of the Immigration Ordinance is a complete legal answer. And its plain words "A notice under subsection 2(a) is not subsidiary legislation" must have revealed the purpose.

65. In the result, although I would not accept that the Notice is principal legislation, it does have effect, apart of course from the paragraphs A(i) and B struck out by the Court, and possibly paragraph C in the context of Ms Li's submissions to which I now turn. How one categorises the Notice, matters little.

66. The Court at p.36H, where it struck out paragraphs A(i) and B of the Notice, was addressing the constitutionality of the Scheme in the context of the No. 3 Ordinance. Ms Li, however, submits that there is no provision in that Ordinance requiring applicants to stay in the Mainland whilst applying for a certificate. The only provision appears in the Director's Notice. In my view, it is nonetheless clear that what was being there considered was the constitutionality of the Scheme as contained in the No. 3 Ordinance. Section 2AB(2)(a) in providing for applications to be made in such manner as the Director may specify, obviously might not empower applicants actually in Hong Kong to be regarded as residing in the Mainland. But this point was not being addressed there and in my view, the passage is not nor intended to be authority that paragraph C of the Director's Notice is intra vires s.2AB(2)(a). The Director's Notice does not, in my view, provide Mr Ma the support he seeks to derive from it. In general I think it unsafe to assume that a provision that is not regarded as unconstitutional in one respect, is to be necessarily constitutional in another respect whatever be its nature or basis. It remains to add that there is nothing to suggest that the extent of the enabling power in s.2AB(2)(a) was addressed in the foregoing context.

The interregnum - what the Court held in Ng Ka Ling

67. In effect, what Mr Ma submits is that the Court held that even during the interregnum pending the filling of the "gap", the Scheme would continue in its full rigour to constrain all applicants for verification of their permanent resident status to obtain certificates of entitlement notwithstanding that they were unavailable. The Court did not address that matter nor decide it. Upon that basis it would fall to this court to decide the point. For my part, I have no difficulty in holding that there is no such constraint upon the Director, confining him to the Scheme while it is inoperable, and precluding him from specifying by notice e.g. an interim arrangement to alleviate the problem. Certainly I cannot see that the duty and power conferred upon him to specify the manner in which applications are to be made would not extend to specification by him of reasonable interim arrangements. A contrary conclusion would be against the generous approach that the Court regarded as applicable in a not dissimilar context (see p.35A of Ng Ka Ling). Moreover, the construction would accord with operation in the lawful, fair and reasonable manner that the Court recognised was required (p.36I-J). This conclusion has obvious implications for two other matters that have to be considered. It suffices to say here that I reject Mr Ma's submission that the Director is obliged to deal with the appellants only upon the basis of whether or not each of them is in possession of a certificate of entitlement.

Whether Part 1B applies to appellants

68. I agree with the Chief Judge that where the Court has held a provision unconstitutional, it follows that the provision was always null and void. So far as ss.23 and 27 of the Interpretation and General Clauses Ordinance (upon which Ms Li relies) are relevant, it does not seem to me that entrants who arrived before the commencement of the No. 2 or No. 3 Ordinance or the Director's Notice, or indeed the decisions of the Court of Final Appeal concerned, acquired any right or privilege by reference to the legal regime in force at the time of entry.

69. I also agree that paragraph 2(c) of Schedule 1 cannot be safely regarded as having been struck down in totality. It follows that I also do not accept Ms Li's submission that Part 1B has thereby lost its "peg" and falls away. But I am unable to agree that the consequence is that Part 1B and the Scheme continue to be fully effective in the way contended for by Mr Ma and confining the Director to only the Scheme during the period that the "gap" in the Scheme remains open, for the reasons I have already given.

Duty of the Director

70. Section 2AB(2)(a) confers a statutory power upon the Director to specify the manner in which application for permanent resident status is to be made. In the circumstances, there is a corresponding duty upon him to specify that manner. Given the importance of the core right involved, he must provide a reasonable manner and do so with all due expedition. The Court, having struck down the previous manner specified in the Director's Notice, contemplated that he would close the resulting gap by specifying a new arrangement. That was on 29 January 1999. Some two months later Yeung J found that the matter was difficult and complicated. Implicitly he found that there was no unreasonable delay. More than two more months have elapsed. During all of that time claimants have had no means to have their claims verified. No person or authority has been specified to receive such applications.

71. Ms Li submits that immediately upon the striking down of paragraphs A(i) and B of the Director's Notice, the Director came under a duty to accept applications from claimants. I am not able to agree. It seems to me that the Director must be allowed reasonable time. I do not say the judge was wrong in his implicit view that further time was properly required. But that was in the context of a replacement arrangement. It seems to me the situation is now different, particularly if it is open to the Director to specify interim arrangements.

72. I have not been able to detect in the material before this court any real appreciation by the Director of the potential frustration of rights of permanent residence in the present situation and of the increasing likelihood that this may warrant an order of mandamus to specify some arrangement or to hear applications. In the meantime, I do not think the material before this court enables me to reach that conclusion, even in relation to the comparatively minute number of claimants comprised by the appellants.

Removal and detention orders

73. I turn then to the duty of the Director in exercising his discretion to remove and for the purpose to detain the applicants. The Court has already said in a similar context at p.36N of Ng Ka Ling that the Director must act in a fair and reasonable manner. That is in any case trite law. It is also trite law that he must have regard to all relevant matters. This must include the claim to permanent resident status of each appellant, even if not expressly made if it is evident. The critical points here are, first, the distinction between a permanent resident whose status is established and one who claims that status. The latter is not entitled to remain in Hong Kong even while his claim is being processed. The second critical point is that the surviving portions of Part 1B still being in force, the Director is at least entitled to refuse to verify the claim on any basis other than a certificate of entitlement, a valid HKSAR passport or valid permanent identity card. However, the duty on the Director to have regard to all relevant matters should result in persons whose permanent resident status can be readily verified without the sort of effort or delay that would be unreasonable in the circumstances, not being removed. If the claim can be easily determined in a matter of days, it is difficult to see how removal before that is accomplished could be right. Conversely, if the claim is going to take months, it is equally not difficult to see why removal of such a person, whose entitlement to permanent resident status is not verified but only claimed, should not be reasonable. This would be a matter for the Director to determine, in the first instance at any rate. It seems to me that the absence of a working scheme enabling the claimant to establish his right is also a relevant fact to be taken into consideration. As I have already indicated, although it does not seem to me in the present circumstances that the Director is under a duty to determine the appellants' claims, I recognise that the present situation may change, e.g. it may emerge that the rights of persons who are permanent residents are being so clearly and unjustifiably frustrated that some relief of the nature sought in these appeals is warranted.

74. Turning to what has happened in the appellants' cases, it is clear that the Director had regard to only one matter, i.e. whether or not each appellant was in possession of a certificate of entitlement. Almost by definition he did not have regard to any other matter. Viewed in another way, the Director addressed the wrong question. As Ms Li submitted, he should have asked himself whether removal was reasonable, not whether the appellants had certificates of entitlement. His decisions to remove and to detain the appellants pending removal must be quashed. That will, of course, mean that the appellants will have to be released, and that they may be re-arrested. If they are, any further removal orders would doubtless be properly considered.

Other relief sought

75. It will be clear from what I have already said that, in my view, none of the other relief sought should be granted, and in that respect, I share the views of the Chief Judge. I would refuse the declarations and likewise the orders of mandamus sought.

Mortimer V-P:

76. I gratefully accept the background to these appeals set out by the Chief Judge.

The issue

77. The question for this court is whether the Director of Immigration has power to arrest and remove an over-stayer or an illegal immigrant who claims to be a permanent resident by reason only that the claimant cannot verify his status by means of a certificate of entitlement.

78. It is ultimately upon this question that the lawfulness of the Director's decision to remove each applicant and the consequent arrest depends.

The opposing submissions summarised

79. The opposing arguments can be summarised. Mr Geoffrey Ma SC, for the Director of Immigration, submits that no applicant has the right to remain in Hong Kong as he is either an over-stayer or an illegal immigrant. A person who claims to be a permanent resident cannot exercise or enjoy the rights associated with his status until his status has been verified. The law provides that a person ordinarily resident in the Mainland of China immediately before coming to Hong Kong can only establish his status as a permanent resident under paragraph 2(c) of Schedule 1 of the Immigration Ordinance, Cap. 115 (the Ordinance) by holding a valid certificate of entitlement. That having come from the Mainland, the applicants are regarded as continuing to reside in the Mainland of China during their stay in Hong Kong. An application for a certificate of entitlement has to be made in such manner as the Director may specify by notice. The consequence is that no applicant holds a certificate of entitlement and therefore he cannot establish his status as a permanent resident and is not regarded as enjoying the right of abode in Hong Kong. Therefore, none of the applicants are protected against a removal order by s.2A(d) of the Ordinance. See paragraph 2(c) of Schedule 1, s.2AA, s.2AB and the Notice "Application for Certificate of Entitlement" under s.2AB(ii)(a).

80. Mr Ma contends that the lawfulness of this procedure and verification was upheld by the Court of Final Appeal in Ng Ka Ling and others v Director of Immigration [1999]2 HKCFAR 4. As the Court of Final Appeal struck down essential parts of the scheme for obtaining a certificate of entitlement in Mainland China, he accepts that since 29 January 1999 there has been no scheme in place whereby any applicant could obtain a certificate of entitlement but contends that it has not been possible to replace the scheme in the time available (as was accepted by the judge) so that the removal of the applicants to the Mainland to make their claims for certificates of entitlement there is lawful because the Director is operating the scheme "lawfully in a fair and reasonable manner" (see the Chief Justice in Ng Kam Ling and others p.36I-J).

81. I leave aside Ms Gladys Li SC's submissions for the applicants that the CFA did not merely excise certain words in paragraph 2(c) of Schedule 1 of the Ordinance but struck down the whole of the provision. I do not accept this contention for the reasons given by the Chief Judge.

82. This excepted, Ms Li's main submission is that the Director's decision to remove, and the exercise of his powers of arrest in order to affect the removal, were unlawful because each applicant claims status as a permanent resident under Article 24 of the Basic Law. Article 24 is in Chapter 3 which sets out the "fundamental rights and duties of the residents". Whereas it is accepted that the Court of Final Appeal in Ng Ka Ling and others upheld the constitutionality of verification by means only of a certificate of entitlement to be applied for in Mainland China by those ordinarily resident in Mainland China pursuant to a scheme which is lawful, fair and reasonable, there is no such procedure available to the applicants. Under s.2A of the Ordinance, the Director has no power to arrest or remove a permanent resident. It is not lawful for the Director to arrest and remove a person who claims to be a permanent resident on the basis simply that he does not hold a certificate of entitlement without giving any further consideration whatsoever to his claim.

83. Ms Li contends that if a person who claims to be a permanent resident is deprived of the means of verifying his status, he is deprived of the right itself. Therefore, before exercising his powers of arrest and removal, the Director must consider such evidence as may be put before him by a claimant to permanent residence in order to satisfy himself "lawfully, fairly and reasonably" that he in fact has the power.

The relevant statutory provisions

84. It is convenient to set out the relevant statutory provisions as excised by the Court of Final Appeal in Ng Ka Ling and others v Director of Immigration [1999]2 HKCFAR 4 and Chan Kam Nga and others v Director of Immigration [1999]2 HKCFAR 82.

The Basic Law

"CHAPTER III: FUNDAMENTAL RIGHTS AND DUTIES OF THE RESIDENTS

Article 24

Residents of the Hong Kong Special Administrative Region ("Hong Kong residents") shall include permanent residents and no-permanent residents.

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

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) 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 Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);"

The Immigration Ordinance, Cap. 115

"2A. Hong Kong permanent residents enjoy right of abode in Hong Kong

(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has ... the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him."

2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

"(1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of-

(a) ... a valid certificate of entitlement ... issued to him and ...;

(2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong.

2AB. Certificate of entitlement

(1) Any person who-

...

(c) claims to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1,

may apply to the Director for a certificate of entitlement.

(2) An application under subsection (1) -

(a) shall be made in such manner as the Director may specify by notice in the Gazette;

...

(4) A notice under subsection (2)(a) is not subsidiary legislation.

(5) For the removal of doubt, it is hereby declared that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director on the application."

85. The Director's Notice in the Gazette under s.2AB(2)(a) which provided for the scheme for application for certificates of entitlement was considered by the Court of Final Appeal and excised so as to strike down the scheme as it applied to the applicants. But paragraph C remains. This provides that over-stayers or illegal immigrants who were previously ordinarily resident in the Mainland of China "shall be regarded as residing in the Mainland of China during such stay in Hong Kong". Section 53D of the Ordinance provides a right of appeal against removal orders to the Immigration Tribunal but by subsection (3) the Tribunal has no power to allow an appeal by a person claiming to be a permanent resident unless the appellant has established his status by holding a valid certificate of entitlement.

"Schedule 1 (The Ordinance)

(2) Permanent resident of the Hong Kong Special Administrative Region

A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region -

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his father or mother was settled or had the right of abode in Hong Kong at the time of the birth of the person or at any later time.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (a) or (b)".

86. The Director's powers of removal are provided in s.19 and associated powers of arrest are provided in Part VII of the Ordinance.

The present position

87. The right of the Director to arrest and remove persons unlawfully in Hong Kong as over-stayers or illegal immigrants cannot be questioned. He exercised his powers on this basis. But these powers are limited by s.2A of the Ordinance. He has no power to arrest and remove a permanent resident.

88. Each applicant claims to be a permanent resident but a person claiming to be a permanent resident cannot either exercise or enjoy the right of abode until his status has been verified. See s.2AA(2) of the Ordinance.

89. The means provided by the Ordinance, and by the Director's Notice under it, for verification was considered by the Court of Final Appeal in Ng Ka Ling's case. The scheme then provided was struck down so far as these applicants are concerned on 29 January 1999. But that part of the scheme which provided for the holding of a certificate of entitlement obtained by application in Mainland China as the only way in which a claimant may verify his status was upheld as lawful and constitutional.

90. The judge below held that

"the Government must be given a reasonable period of time to work out an acceptable new arrangement, bearing in mind that the task involved is complicated and extremely difficult".

This has not been challenged and it has not been possible for a new scheme to be put in place by the Director. The consequence is that there are no means whereby any claimant to permanent resident status may obtain a certificate of entitlement to verify his status. The Director accepts that there is no lawful way in which a claimant who is a permanent resident may establish and therefore enjoy his right of abode.

Conclusion

91. The right of abode provided under the Basic Law is a constitutional right described in the law itself as a "fundamental right". I take it to be axiomatic that persons entitled to a right of abode cannot be deprived of this right by domestic legislation or administrative arrangement.

92. The question is, however, whether those who only claim to be permanent residents have any right under Article 24. But in my judgment, the absence of any means of verification clearly amounts to a deprivation of the fundamental right. Of what value is a constitutional right which cannot be established because of the effect of domestic legislation and administrative arrangements? It is against this type of limitation or removal of constitutional rights that the courts must be particularly vigilant.

93. The consequence is that we should not countenance a situation in which there is a deprivation of constitutional right. It therefore becomes necessary to intervene to protect those who are potentially deprived. I would hold that in circumstances where verification is impossible, the Director must take reasonable steps to ensure that he is not exceeding his powers by arresting and removing any person who has the right of abode. I would hold that when a person in the position of each of the applicants claims to have this status, the Director must at least consider the evidence which that person seeks to put before him in support of the claim. Failure to do so renders the decision unlawful as well as the consequent arrest.

94. The authority for such an enquiry by the Director rests within Article 24 itself. The provision in s.2AA(1) for verification is and was ineffective so far as these applicants are concerned but as Ms Li points out there is nothing in the Ordinance which prevents the Director from considering each applicant's claim rather than acting solely on the absence of the certificate of entitlement.

95. For these reasons I would hold that the failure of the Director to consider such evidence as each applicant wishes to put before him relevant to his/her status makes the decision unlawful. In the particular circumstances, this amounts to a deprivation of a fundamental right under Article 24. The consequence is that each decision in relation to each applicant must be quashed and, as the associated arrest in each case is also unlawful, each applicant must be released from restraint.

96. For my part, I would say little more on this point. The decision is for the Director. If on consideration of the information put before him an applicant's status is readily established, it will become clear that he has no right under s.2A of the Ordinance to arrest and remove him. In other cases, lengthy enquiry may be necessary, the status will not be established and he therefore may lawfully arrest and remove such applicant to the Mainland pending any further application there.

Ms Li's submission on precedent fact

97. I cannot leave this matter without referring to Ms Li's contention that it is open to the court to decide whether or not each applicant is in fact a permanent resident. She submits that in order to exercise his powers of removal and arrest, the Director must satisfy himself of the precedent fact that the applicant concerned does not have the right of abode. She then submits (rightly) that there are circumstances in which the courts will decide whether a precedent fact of this kind has been established. However, as such a decision is primarily for the Director and has not yet been addressed, I would hold that the court should not seek to decide the point and make the declarations applied for. This is not to say, however, that no circumstances will arise in future in which it may be necessary for the court itself to decide such a fact and make consequential declarations.

The Director's Notice under s.2AB(2)(a)

98. I would also raise one matter upon the Director's Notice upon which we heard submissions.

99. The legislative approach of granting the Director enabling powers to specify a scheme is a practical and useful one. However, in circumstances such as the present, this places a heavy burden upon him and one in which he receives no assistance from the legislature to ensure that by his Notice he does not unlawfully limit, by semi-administrative means, the rights provided in the Basic Law. The courts must be vigilant to ensure that such notices are not repugnant both to the powers provided in the Ordinance and the Basic Law. For example, I have some reservation (without deciding the point) as to the lawful foundation of the provision in the present notice that certain persons present in Hong Kong but ordinarily resident in the Mainland of China "shall be regarded as residing in the Mainland of China during such stay in Hong Kong".

The orders

100. I would therefore allow the appeal and make the following orders:

(1) In the case of each applicant, I would grant the application for judicial review and make an order of certiorari to quash the decision of the Director or the Assistant Director to remove and detain him or her.

(2) I would order the release from detention and restraint of each applicant on his or her application for a writ of habeas corpus.

(3) I would make no further order and refuse the applications for the various declarations relating to status and other matters, for mandamus to compel the Director to specify a new scheme by notice in the Gazette and for prohibition to prevent the execution of the removal orders. These applications are either unnecessary or premature.

Chan CJHC :

101. The result is that we allow these appeals in part and order that the removal orders issued by the Director against each of these appellants and his decisions to detain them pending removal be quashed and that these appellants be released immediately.