The right of abode cases that shook Hong Kong

PUBLISHED : Tuesday, 03 February, 2009, 12:00am
UPDATED : Tuesday, 03 February, 2009, 12:00am

The legal battle over the right of abode began while Hong Kong was still celebrating the handover.

In the months which followed, the High Court was swamped with applications from the mainland-born children of permanent residents. It took years for those cases to work their way through the courts.

It culminated in the two judgments delivered by the Court of Final Appeal on January 29, 1999. Here is a brief guide to those two landmark decisions.

Ng Ka-ling and others vs Director of Immigration

At the heart of the case was the question of who had the right of abode under the Basic Law and whether they could stay in Hong Kong.

The applicants' argument was simple. Article 24(2) of the Basic Law says Chinese nationals 'born ... of' a permanent resident had right of abode.

The court decided that Article 24(2) gave permanent residents the unqualified right of abode. 'They are permanent residents with the right to enter [Hong Kong] and stay as long as they wish,' said the chief justice.

Chan Kam-nga vs Director of Immigration

This case concerned whether children born on the mainland before they had a parent who was a Hong Kong permanent resident qualified for right of abode under Article 24.

The court ruled that Article 24 clearly included all children 'born of' permanent residents, no matter when they were born.

Ng Ka-ling and others vs Director of Immigration (No2)

On February 26, 1999, the court clarified its ruling from January 29 at the request of the Hong Kong government, to make clear that it had not intended to challenge the power of the NPCSC.

The interpretation by the NPCSC

This was adopted on June 26, 1999. It stated that the Court of Final Appeal was wrong not to refer the right of abode cases to Beijing. The NPCSC declared, contrary to the court's judgment, that right of abode applicants required permission from mainland authorities before coming here. The one-way permit requirement was restored.

It also ruled that children born before either of their parents became a permanent resident did not qualify for the right of abode under Article 24(2). The interpretation did not apply to parties who had been before the court.

The stories on this page are edited versions of articles which appeared on Page 12 of the South China Morning Post on January 29, 2009