Proposed Legal Reform Bodes Ill for Vulnerable Migrants in Hong Kong – The Diplomat

China Power | Society | East Asia

Beijing’s drive to ensure that only “patriots” can govern Hong Kong came to a head in November 2020, when all “pan-democrat” legislators but one were expelled or resigned from the Legislative Council. This is deeply dispiriting for the majority of Hong Kongers who want more, not less, representative government. Recent developments suggest that it also hurts some of Hong Kong’s most vulnerable minorities.

The Hong Kong government recently tabled a bill to amend Hong Kong’s main immigration law. If it passes, the bill will make an asylum system that is already harsh even less hospitable toward people fleeing persecution in their home countries. In the absence of any opposition lawmakers, debate on the bill has lapsed into crude stereotyping. During livestreamed meetings of the committee reviewing the bill, one legislator alleged, without evidence, that asylum-applicants were committing “burglaries and rapes.” Another advocated blanket, mandatory detention (while conceding that asylum applicants were not criminals and could, therefore, be shown around the city thrice a month by NGOs). In one meeting, a legislator argued for detaining asylum applicants because locals found their presence distasteful. No legislator present objected when one of their colleagues derided lawyers representing detained migrants as “ambulance chasers” and “human rights rats.” A couple of legislators pressed the government to clarify provisions on the use of arms in immigration detention. But none argued vigorously for upholding Hong Kong’s constitutional and human rights commitments.

Currently, Hong Kong implements what could be described as a half-way-house asylum regime. It is not a party to the 1951 Refugee Convention. However, it is a party to the Convention against Torture and the International Covenant on Civil and Political Rights. To respect its commitments under these treaties, Hong Kong permits migrants to apply for protection from forcible return – refoulement in legal terms – to their countries of origin if they fear torture, persecution, arbitrary killing, or other grave abuse upon their return. If the government finds such a protection claim to be credible, the claimant receives permission to stay temporarily in Hong Kong. Some are eventually re-settled by the United Nations in a third country.

In practice, this system serves asylum claimants poorly. Data since 2014 indicates that less than 1 percent of claims against forcible return have been successful. By comparison, in the same time period in the United Kingdom, the success rate of asylum claims ranged between 51 percent and 64 percent. Moreover, resolving these claims in Hong Kong can be protracted, and claimants (who are legally prohibited from working) subsist for years in a state of legal, financial, and psychological limbo. Reform is urgently needed. Unfortunately, the reforms proposed by the Hong Kong government pursue speed and control at the cost of safety and fairness.

If passed, the bill would allow immigration officials to liaise with foreign governments about removing a rejected claimant from Hong Kong, even if that person’s appeal is still being heard. Alerting home-country authorities to a claimant’s situation could expose that person to grave harm when they are forcibly returned.  The dangers that drove someone to flee their country might still loom large. In addition, the Hong Kong Refugee Concern Network points out that some states penalize the very act of seeking asylum. In the Democratic Republic of Congo or Sri Lanka, for example, returnees often face detention, torture, or worse.

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The bill also proposes to strengthen the government’s (already considerable) powers to detain migrants who breach immigration rules. Currently, when deciding whether to detain a migrant who has broken an immigration rule, the relevant official considers whether that individual is likely to abscond or commit a crime if granted liberty. The proposed amendments would allow officials to factor systemic resource constraints into detention decisions. Contrast this with someone accused of committing a crime: A judge, not a government official, decides whether to grant them bail. And the decision is based on case-specific considerations rather than the resources of the prison system at that point in time, because something as serious as deprivation of liberty should not be determined by administrative convenience. The government’s proposals would impose a harsher standard on migrants who have committed no crimes, and undercut core due process tenets that have long been embedded in Hong Kong law.

The bill also seeks to expand the power of staff in immigration detention centers to wield firearms and other weapons. The scope of this power is left worryingly vague. Anecdotal accounts from detainees and lawyers suggest that there have been multiple incidents in recent years where staff physically abused detainees. Last year, some detainees went on an extended hunger strike in protest against detention conditions. Boosting the power to wield force within detention facilities that lack robust oversight mechanisms heightens the risk of abuse.

The proposed amendments would also grant the government the power to order airlines to disclose passenger information and to prohibit individuals from being allowed on board a flight. If passed, this power could lend itself to racial profiling and preventing suspected asylum seekers coming into Hong Kong. It could also be used to stop political dissidents from flying out of Hong Kong. As currently formulated, it sits uneasily with Hong Kong residents’ constitutional right to freedom of movement.

In November last year, Hong Kong Chief Executive Carrie Lam welcomed the prospect of an acquiescent legislature. But the loss of political diversity and dissent in the Legislative Council hurts accountability. Unfortunately, those on the margins of Hong Kong society might feel this loss the most.

Surabhi Chopra is an associate professor at the Faculty of Law, Chinese University of Hong Kong.

Raquel Amador is a Hong Kong-based legal researcher specializing in migrants’ rights. They are currently working on the project “Immigration Detention and Vulnerable Migrants in Hong Kong.”