Judges reserve ruling in abode case

PUBLISHED : Saturday, 08 September, 2001, 12:00am
UPDATED : Saturday, 08 September, 2001, 12:00am

The fate of more than 5,000 mainlanders fighting for the right of abode is hanging in the balance after the Court of Final Appeal yesterday reserved judgment in the case which could put an end to the saga.

Chief Justice Andrew Li Kwok-nang said the case - which involves 5,114 mainlanders - raised several important issues and the top court would hand down its ruling at a later date.

In her concluding submission, barrister Gladys Li, SC, for the migrants, questioned the reliability of records related to the right of abode kept by the Immigration Department and the way they were handled.

Ms Li said it was wrong in law for the Government to grant the right of abode to claimants whose records were kept by Immigration, but not to those whose applications were only lodged with the Legal Aid Department.

She referred to a family of five - included in the current case - who were denied the right of abode after being interviewed by Immigration Department officers on July 4, 1997, and repatriated to the mainland.

The Immigration Department ruled the family fell outside the concession. However, an immigration officer said in a sworn statement on August 16 last year that the family had lodged a claim within the specified time frame.

Chief Executive Tung Chee-hwa promised on June 26, 1999, that the right of abode would be granted to mainlanders who arrived in the SAR between the handover and two landmark rulings delivered on January 29, 1999, and who had applied for the right of abode. Records of their applications had to be kept by the Immigration Department.

The mainlanders say they are entitled to stay in the SAR under the January 1999 rulings, which included a verdict granting the right of abode to children born before one of their parents became a permanent resident.

They also maintain they are not affected by a reinterpretation of the Basic Law in June 1999 by the National People's Congress Standing Committee that reversed the January rulings.

Geoffrey Robertson, QC, representing the mainlanders with Ms Li, said yesterday the date of the reinterpretation stood as the cut-off point and mainlanders who lodged claims before then should not be affected.

Barrister Joseph Fok, SC, for the Immigration Department, said in his final submission that mainland abode claimants had to have obtained mainland one-way exit permits as stipulated in the Basic Law before they could receive right of abode in the SAR.

Mr Fok, presenting the case with barrister Geoffrey Ma, SC, has argued none of the thousands of claimants now seeking the right of abode meet the criteria laid down in the concession policy.