Hoo sees way to fix rules on abode

PUBLISHED : Saturday, 04 February, 2012, 12:00am
UPDATED : Saturday, 04 February, 2012, 12:00am


The solution to the right of abode controversy lies with the Hong Kong government - or even the British government - rather than amending the law, a Basic Law expert says.

Alan Hoo QC, chairman of the Basic Law Institute, said the Hong Kong government should correct a 2002 change to immigration rules that is at the root of the row over mainlanders giving birth in the city.

The rules were changed to bring them into line with a 2001 ruling on the Basic Law by the Court of Final Appeal that gave permanent residency to a boy, Chong Fong-yuen, born in the city while his parents were visiting from the mainland.

Hoo said Beijing could not amend or reinterpret the Basic Law concerning right of abode because it had al-ready done so in 1999, effectively saying mainlanders did not have right of abode in Hong Kong unless at least one parent was a permanent resident of the city at the time of birth.

Hoo said a 1993 Sino-British Joint Liaison agreement clearly stated that a child born in Hong Kong would only be entitled to right of abode if at least one parent was a resident at the time of birth. He believes if a way could be found to bring the issue before the city's top court again, the government could convince it to side with the 1993 agreement.

The way to achieve that, he says, is for the government to ask the Legisla-tive Council to approve changing the immigration rules to comply with the 1999 interpretation.

Then it could properly claim that children born of mainland parents did not enjoy automatic right of abode, rather than resorting to administrative measures to stop mainland births in the city.

If that triggered legal challenges, Hoo believes the top court would reach a judgment in line with the 1999 interpretation.

The government would need to provide 'enhanced evidence', Hoo said, and that would mean providing a more authoritative version of the 1993 agreement - a pamphlet version of that agreement was given in evidence to the top court in 1999 but was rejected.

Hoo said that the court might take it more seriously if Britain mentioned the contents of the 1993 agreement in one of its regular parliamentary reports on Hong Kong - perhaps as a result of some lobbying from Hong Kong.