Clearing up confusion

PUBLISHED : Sunday, 14 March, 1999, 12:00am
UPDATED : Sunday, 14 March, 1999, 12:00am

In his Sunday Morning Post column of March 7 (on the Court of Final Appeal's decision on right of abode), Tim Hamlett has suggested that the only evidence of a Joint Liaison Group (JLG) 'agreement' was an Immigration Department leaflet.

While that is partly true in relation to the status of children born out of wedlock, it is not true in relation to the far more significant issue of whether the status of Hong Kong permanent resident is conferred upon a person of Chinese nationality born outside Hong Kong if neither parent satisfied the criteria for permanent resident status at the date of the person's birth. The JLG agreement on that issue was reached in late 1993 and was reported in an information note to the Legislative Council's Nationality Sub-committee by the then Security Branch on January 3 1994. A copy of that information note was included in the evidence before the Court of Final Appeal.

One other misunderstanding which has affected media reporting on this issue is the suggestion that the persons affected by the litigation are all 'children' in the sense, presumably, that they are not adults. The relevant provision of the Basic Law does not however make any reference to the age of the persons concerned, but deals only with their relationship with their parents. Contrary to Mr Hamlett's assertion, it appears that most of the persons currently affected are over the age of 20.

Mr Hamlett's confusion, which is shared by many commentators, may arise from his failure to appreciate that on January 29 of this year, the Court of Final Appeal gave not one but two judgments. While it is the judgment which has given rise to the political controversy which was read out by the Chief Justice in court, it is the far shorter judgment, which was not read out, which relates to the acquisition of right of abode by descent.

The Court of Final Appeal upheld the scheme requiring persons to apply for a certificate of entitlement while in the mainland, which was introduced shortly after the handover and which Mr Hamlett condemns, while striking down the legislation to give effect to the 1993 JLG agreement, which when announced to the Legislative Council at the beginning of 1994, appeared to be entirely uncontroversial.

IAN WINGFIELD Law Officer (Civil Law)