RIGHT OF ABODE

British-born man whose residency status is anything but permanent

High Court asked to quash ruling on man born in Britain whose ID card status keeps changing

PUBLISHED : Thursday, 17 January, 2013, 12:00am
UPDATED : Thursday, 17 January, 2013, 3:15am

When is a permanent resident no longer a permanent resident? That is the question now being put to the High Court by the Immigration Department in a case involving a man born in Britain to Hong Kong permanent residents.

British national Man Wai-sing, 38, was given a permanent resident's identity card in 1995 when the Immigration Department decided that he was then a British Dependent Territories citizen and he had connections with Hong Kong because his parents were born in the city.

But 15 years later, the Immigration Department considered Man no longer a permanent resident. It ruled that after the handover being a Chinese national was a prerequisite to being a Hong Kong permanent resident under a law it believed applied in Man's case.

The department ruled Man was not a Chinese national because he was born in Britain, he acquired British nationality by birth, and his parents had settled there when he was born.

Man had also been absent from Hong Kong for a continuous period of not less than 36 months and he did not return to settle in Hong Kong within 18 months after the handover, the department said. He is currently residing in Britain.

However, Man still enjoyed the right to land, meaning that he had no restrictions getting in and out of Hong Kong.

Unhappy with the decision, Man filed an appeal with the Registrations of Persons Tribunal, which in the end found in his favour.

The tribunal ruled that the Chinese Nationality Law did not apply in Man's case because the law came into force only after Man's birth. And even if the law did apply, Man could still be considered a Chinese national because his parents acquired right of abode in Britain only two years after Man was born.

Following the decision, the department wrote to Man in December saying he could only apply for a permanent identity card subject to validation of the tribunal's decision.

Now, the Immigration Department is asking the High Court for permission to lodge a judicial review of the tribunal's decision. It wants the ruling quashed and the case sent back to the tribunal for reconsideration.

The department says in its application that the tribunal "did not appear to appreciate that the establishment of the HKSAR introduced a new constitutional order and new categories" of Hong Kong permanent residents.

It adds that the old permanent identity cards had already been declared invalid from September 2007 by the Registration of Persons (Invalidation of Identity Cards) Order 2007.

The department also says the Chinese Nationality Law is a "control mechanism" to be deployed in assessing a person's right of abode after July 1997.