Mother split from family after losing right-of-abode fight
A mainland mother yesterday lost her bid to stay with her family in Hong Kong after failing to convince the Court of First Instance that international covenants entitled her to do so.
In handing down his decision, Mr Justice Michael Hartmann said the International Covenant on Economic, Social and Cultural Rights did not apply to families in matters of immigration.
Article 23 of the covenant states: 'Family is the natural and fundamental group unit of society and is entitled to be protected by society and the state.'
But Mr Justice Hartmann said: 'Matters of immigration, as our courts have recognised, remain a major problem.
'If unchecked, it is clear that, in the informed opinion of the director [of immigration], the problem will threaten the territory's social fabric.'
Chan To-foon, 45, who met and married her husband on the mainland but gave birth to their children in Hong Kong, is the only member of her family who does not have the right of abode. She has been fighting a removal order since December 1997.
During the judicial review launched by Ms Chan and her family against the Director of Immigration and the Secretary for Security, the court heard that 150 mainlanders were granted residency every day and that her circumstances were 'typical, rather than exceptional'. Ms Chan will now be forced to report to immigration authorities and leave behind her three-year-old son and five-year-old daughter, her husband and his elderly, ill parents - who all rely on her.
A Social Welfare report submitted to the court described Ms Chan as an indispensable member of the household and recommended she stay in Hong Kong 'for the well-being of the whole family'.
Mr Justice Hartmann said that the director's orders did not involve an 'interference with the fundamental right to a family life' and were not 'perverse or irrational'.
'Instead, they prevent [Ms Chan] from living with her husband and children without interruption in Hong Kong,' he said.
Ms Chan was challenging the Director of Immigration's decision that there were insufficient humanitarian grounds to revoke the removal order against her.
Her family was also named in the court action as it was alleged her removal would be contrary to their rights under the International Convention on Civil and Political Rights, the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights.
Ms Chan argued it was unlawful for the director not to use his discretion to consider the two conventions. But Mr Justice Hartmann said the director was not bound by them.
