Mr S fled his home country in Africa to avoid forced conscription and religious persecution after being tortured and spending many years in jail. He has been in Hong Kong for nine years and his case is currently under appeal at the Torture Claims Appeal Board.
He is a qualified accountant with a great interest in finance, and thanks to the support of NGOs has been able to continue his education online. The long legal wait time and the unpredictability of the Unified Screening Mechanism, compounded by his destitution and lack of right to work, have badly affected his mental well-being, even to the verge of self harm.
On Wednesday the government will begin at short notice the process of presenting its Immigration (Amendment) Bill 2020 to the Legislative Council (LegCo) for its first and second reading. The bill authorises changes to the existing ordinance “with a view to improving the screening procedures for non-refoulement claims and introduce enhanced measures in respect of law enforcement, removal and detention.”
It proposes, among other things, authorising the government to negotiate a person’s repatriation to their former country without consent and before they are ultimately rejected as a non-refoulement claimant, and reducing the time allowed for making and substantiating claims. It will also authorise officers at the Immigration Detention Centre to carry arms.
In layperson’s language, it is the government’s latest attempt to rid itself of a longstanding issue that has created considerable problems with the general public and with LegCo alike. On the one hand the government is trying to protect itself against the ever-present danger of illegal immigration overwhelming Hong Kong’s resources and creating social and economic problems; and on the other, it must face up to its human rights responsibilities as an international business, finance and tourist hub.
Sitting right in the middle of all this is the question of how to deal with asylum-seekers.
Hong Kong’s approach has been mainly a defensive one aimed at preventing a “magnet effect” for refugees and asylum-seekers, while trying to keep an open door to business and tourism. It has not signed the 1951 Refugee Convention, under which it would have afforded protection to refugees as prescribed in the convention and international law. Instead, it established a firm policy of “not granting asylum, and not determining or recognising refugee status of any person.”
In so doing, it devised a system in which people arriving in Hong Kong to seek protection would have to overstay their visas or enter Hong Kong illegally in order to be eligible for non-refoulement protection (protection against deportation). Hence those who fled their home countries in a desperate attempt to find safety are seen as illegal immigrants in our city and are subject to deportation as soon as possible.
Despite a few loopholes to this approach, because of previously signed human rights conventions on non-refoulement in the cases of torture and other civil and political rights, the Hong Kong government had still managed to maintain its “firm policy” by delegating responsibility for assessment and resettlement of such claims to the United Nations High Commissioner for Refugees.
However, by 2004, its responsibility to comply with international human rights conventions started to catch up with it as a result of a number of key judicial reviews. By 2013, the government had no option but to establish its own screening process that needed to encompass a wide range of human rights violations. It eventually began in March 2014.
Although Hong Kong had quickly devised a mechanism to deal with this as an administrative amendment to its Immigration Ordinance, it was not fully prepared for what was to become a completely new situation and an intractable dilemma. For those outside of Hong Kong who needed to escape terrible political persecution and life-threatening harm, the city suddenly became a possible refuge. For those who wanted to exploit and abuse its systems, it suddenly became a place of opportunity.
While Hong Kong had a firm policy of “not admitting people seeking refugee status,” it also had a border control policy that was not best prepared for the new situation it was about to face. It was already under pressure processing incoming passengers, coping with a six million per year increase in Chinese tourists, and facilitating efficient visa arrangements for business and foreign visitors.
As a result, by the end of 2016, Hong Kong’s fledgling Unified Screening Mechanism was facing a threefold rise in new claims in addition to processing a substantial backlog of old claims which had accumulated from its previous approach. About 50 per cent of the new claims were from those forced to become visa overstayers and 50 per cent were entrants through the China border by means considered to be illegal. It took a further two to three years for the Immigration Department to cope with the influx and backlog and introduce new measures to bring things under control.
Today it is living with the legacy of that situation and has only compounded its problems with a questionable screening process that has resulted in over 1,000 rejected claims awaiting review at the Torture Claims Appeal Board, and well over 5,000 rejected claims clogging up the courts awaiting leave for judicial review.
With a success rate of less than one per cent substantiated claimants since the Unified Screening Mechanism started (half of which were only granted after an appeal or judical review), many would want to rid Hong Kong of this whole costly issue by speeding up the repatriation process just as this Amendment Bill proposes, and hopefully ending the problem as quickly as possible.
However, despite its firmly stated policy Hong Kong will never rid itself of refugees entirely, and people like Mr S are still here relying on it to ratify their long battle for justice. There will always be those who, for one reason or another, are here seeking a place of refuge. It is surely not enough merely to plug loopholes and advocate ever-tightening measures to rectify what appears to be a failing system.
Throughout the years, Hong Kong’s hopeful group of asylum-seekers have not been treated well. Labelling them as illegal immigrants and overstayers creates a public perception of them as troublemakers and criminals and denies them the dignity they deserve. Like Mr S, they have endured public censure while they eked out a meagre living, barred from working while suffering insults as scroungers. They also faced barriers obtaining help at health, education and social services, waited many long years for recognition, and then still had to use a protection claimant recognisance form instead of an identity card like the rest of us. Once long ago, they were reluctant asylum-seekers, now they are illegal immigrants for as long as they remain in Hong Kong.
The least that can be done to recognise their predicament is to conduct a thorough independent review of the Unified Screening Mechanism and its operation within the Immigration Department’s Removal Section. Perhaps then, it might be better able to serve both asylum-seekers and the people of Hong Kong.
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