There has been feverish speculation in recent days over the legal framework surrounding surveillance whistleblower Edward Snowden and his presence in Hong Kong. Here, Professor Simon N.M. Young, director of the University of Hong Kong's Centre for Comparative and Public Law, looks at Snowden’s current and possible future circumstances.
What will happen when Edward Snowden’s current visa expires?
If Mr Snowden remains in Hong Kong after the expiry of his limit of stay, he may be prosecuted for the offence of breach of condition of stay, contrary to s. 41 of the Immigration Ordinance (Cap.
115). However it is only after his limit of stay has expired or a surrender request has been made that he can make an asylum claim in Hong Kong (see
CH v Director of Immigration; Immigration Ordinance,
s. 37W(2)). Asylum claims in Hong Kong are more accurately described as non-refoulement or non-return claims. Since Hong Kong is not bound by the 1951 Refugees Convention, the full package of asylum rights under that Convention do not apply at this time. It is government policy that while an asylum claim is pending, the claimant is not to be returned to the place of risk or prosecuted for the breach of condition of stay offence.
There are three kinds of non-return protections available in Hong Kong: (1) torture non-refoulement, based on Articles 1 and 3 of the Convention Against Torture; (2) cruel, inhuman or degrading treatment or punishment (CIDTP) non-refoulement, based on Article 7 of the International Covenant on Civil and Political Rights; and (3) persecution non- refoulement, based on Articles 1 and 33 of the Refugees Convention.
What will happen if Snowden makes a non-return claim (asylum claim)?
The procedures for processing torture claims are clear and well-defined in new legislation, which came into force on 3 December 2012 (see
Immigration (Amendment) Ordinance 2012). This process involves initial screening and decision-making by an immigration officer and a possible merits review by an independent appeal board. Judicial review of the appeal board’s decision in the Court of First Instance, followed by appeal to the Court of Appeal and further appeal to the Court of Final Appeal are possible with leave granted by the respective courts.
