Appeal judge backs asylum seekers taken to court for working

PUBLISHED : Tuesday, 01 June, 2010, 12:00am
UPDATED : Tuesday, 01 June, 2010, 12:00am

The Court of Appeal has upheld a ruling that asylum seekers and torture claimants should have immunity from being prosecuted for illegally remaining in Hong Kong until their requests for refuge have been decided.

The judgment covered the cases of 28 Pakistanis who had illegally entered the city and were allowed to stay under various Immigration Department conditions pending the outcome of their asylum and torture claim applications.

They had all been charged with remaining without the authority of the Director of Immigration for allegedly working here.

In 2004 a policy was introduced that stated the authorities would not prosecute asylum seekers and torture claimants for an immigration offence relating to their claim - that is, landing and remaining without permission - until their applications had been determined.

At issue in yesterday's cases was whether the prosecution had acted within this policy when charging the Pakistanis with illegally staying in the city to work.

Previously, a magistrate had ruled that the prosecution had acted according to the policy. However, when the Pakistanis appealed, the Court of First Instance ruled in their favour, saying they should not be prosecuted for working here until their asylum applications had been decided. The ruling appeared to have triggered an increase in illegal immigrants.

The prosecution appealed against that ruling. Yesterday the Court of Appeal determined that the Pakistanis should enjoy immunity from being charged with landing or remaining illegally.

'For the applicants seeking asylum or making a claim as torture claimants, this was precisely the type of offence that the prosecution policy specifically excludes from prosecution ...' Mr Justice Geoffrey Ma Tao-li said.

Whether they were working was irrelevant, he said, because they had not been charged with such an offence.

The judge sent the cases back to the magistrates' courts.

Previously, there was no law explicitly stopping asylum seekers from working in Hong Kong. However, last November, a new law plugged that loophole.

The Department of Justice said it would need time to study the judgment carefully before deciding on the way forward.