Hong Kong’s refugee claim system leaves many tough questions

Despite recent news linking asylum seekers to crime, official figures show that those involved represent a very small portion of the problem. But are claimants taking advantage of the system and is it too slow and biased, leading to exploitation?

PUBLISHED : Sunday, 28 February, 2016, 12:07am
UPDATED : Wednesday, 02 March, 2016, 1:18pm

Two years ago a new system was introduced to deal with people arriving in Hong Kong to seek refuge from what they say is persecution in their homeland.

“The unified screening system will enhance implementation of our policy objective to process claims for non-refoulement protection … and at the same time prevent abuse by economic ­migrants who aim to protract their unlawful stay in Hong Kong,” said a government spokesman at the time.

Fast-forward and the exact opposite appears to be the case.

In fact, 24 months after the new system came into effect – following legal rulings by Hong Kong’s highest court – the system is subject to an official review.

READ MORE: Hong Kong’s Indian community anger grows over possible visa curbs

The available facts and evidence from people who know the system suggest the cure has made a bad situation worse. It has, they say, created a process that is open to abuse not only by bogus asylum seekers but employers, lawyers and people-smuggling gangs.

For the government, blame lies predominantly with the very people the system was set up to benefit.

Others paint a more nuanced picture of a slow, skewed and byzantine system, which at times looks like it was designed to fail.

The bogus claimant blame game has gained traction in recent months with the government making public several cases linking people seeking refuge – formally known as “non-

refoulement claimants” – to illegal work and other criminal activity.

The security bureau points to a sharp increase in the number of claimants from India since 2014, the year that self-proclaimed Hindu nationalist Narendra Modi became prime minister. Coincidence or not, claims lodged in Hong Kong by Indians have risen from 10 a month in 2013 to 134 in 2014 and last year.

But are most asylum seekers criminals or “bogus” claimants, as many Hongkongers might think ? If so, why is this happening in Hong Kong?

The new system screens refugees based on torture and cruel, inhuman or degrading treatment or punishment, as well as persecution.

There were 6,699 outstanding claims in March 2014. This rose to 10,922 at the end of last year. Of those, 60 per cent were new claims, said the ­government.

Statistics also show an increasing number of claimants being detained for unlawful employment and other criminal activities between 2013 and last year.

According to official data, 232 asylum seekers were arrested last year for working illegally and 1,113 detained for other criminal offences – mostly shop theft (277), serious drug offences (159) and other types of theft (110). They represented 12.3 per cent of the torture claimants, and about 3.9 per cent of the total number of people arrested last year.

The government said it does not maintain data on prosecutions and convictions, nor a breakdown by nationality. The majority of claimants are from Vietnam, India and Pakistan.

Although some might think asylum seekers are taking their jobs, official statistics show that protection claimants represented 3.4 per cent of the 6,762 illegal workers ­arrested last year. Of those, 1,565 were prosecuted.

READ MORE: Why are Indians being targeted in Hong Kong’s crackdown on illegal immigration?

The government could not provide figures on how many successful convictions were secured from the 196 employers prosecuted last year for hiring illegal labour. The number of asylum seekers among those illegally employed was also not available.

Last year, the United Nations Committee Against Torture noted that by denying asylum seekers the right to work, Hong Kong made them “live on in-kind assistance below the poverty line for long periods of time.” Rights advocates say this can lead to illegal work and criminal activity.

Secretary for Security Lai Tung-kwok said the government was “very concerned” about reports of agencies in India arranging fictitious “asylum visas” for Indians to come to Hong Kong. “Apart from serious abuses to our non-refoulement screening mechanism, such ‘services’ exposed in the reports may also involve a number of serious criminal offences amounting to human trafficking,” Lai said.

Lai’s revelation came as no surprise to those who know the intricacies of the system. “Of course the fact that there are so many delays in the system means that it is easy to exploit,” law firm Daly and Associates said. “The issue ... can be fixed only through good ­administration. Immigration needs more expertise up front to sift through claims.”

Human rights lawyer Patricia Ho accused the government of hoodwinking the public.

“I am not foolish enough to say that there is no abuse of the system, or that we do not need to prevent abuse, but it is time the public must realise why and how abusers are taking advantage,” she said. “The government’s delay and lack of training in dealing with such [bogus] claims effectively led to invitations for many to come.”

The Immigration Department said it could usually determine a claim in six months, but stressed that it might take longer if claimants did not cooperate. If rejected, a claimant can appeal to the Torture Claims Appeal Board. They can also file a judicial review in the High Court.

In Europe last year alone, Germany screened 60 per cent of 965,000 asylum claims within five months.

Hong Kong does not resettle asylum seekers, because it is not a signatory to the UN Refugee Convention. But if a protection claim is substantiated on grounds of persecution, the claimant will be referred to the United Nations High Commissioner for Refugees for resettlement in a third country.

Following a series of news reports on “bogus” claimants, last month Chief Executive Leung Chun-ying announced a “comprehensive review” of the system.

The security minister said his “top priority” was “to intercept illegal immigrants at source and to expedite the screening process to remove unsubstantiated claimants to their country of origin”.

The security bureau is considering fresh visa restrictions, a tightening of the time frame for screening claims and enhanced Immigration Department powers to detain claimants.

Lawyer Ho said these “are measures that erode the most basic human rights of some of the most vulnerable persons on our planet”.

Puja Kapai, professor of law at the University of Hong Kong, ­said a change of mindset – not an enforcement clampdown – was the answer.

“For as long as there’s the attitude that we need to keep certain people out, to block people ­because they are fake claimants or they just want to access our labour market pending the review of their claims, regardless of the system we have in place, invariably it will remain inefficient ,” she said.

If the government was “intentional about achieving justice and fairness, we would have a more transparent system with clear criteria that signify the hallmarks of meeting the threshold for screening,” Kapai added.

Between March 2014 and ­December 2015, 3,165 non-

refoulement claims have been screened, of which only 18 were substantiated, including three on appeal. The acceptance rate in Hong Kong – which stands at 0.56 per cent since unified screening was introduced – is one of the lowest in the developed world. The global acceptance rate is around 43 per cent.

The government ­attributed that to the fact that most protection claims were weak and even fabricated.

But Kapai had a different interpretation: it can mean that there is a backlog ­because the system is slow or the mechanism is not working because applicants rarely satisfy the threshold for screening as the bar is set too high.

Piya Muqit, executive director of human rights NGO Justice Centre, said that a disparity in rates of recognition reflect “inadequate training and poor knowledge among the relevant immigration officials.”

She added that “lawyers and NGOs involved in helping claimants frequently observe very basic legal and factual errors in decision-making.”

John Dean, who was assistant secretary for security and then principal assistant secretary at the Home Affairs Bureau in the 1990s, disagreed with those who blamed the government and said that the slowness was due to an “over- pressurised legal system.” He argued that Hong Kong – despite the international treaties – had no obligation to deal with others’ problems.

“We should resile from the UN Convention against Torture. It won’t affect any rights of people in Hong Kong ... so we can start chucking these people out,” he noted, recalling that Hong Kong had reservations before joining the convention.

Dean described a seeming “lapse of corporate memory”, asserting: “Hong Kong went into the Convention Against Torture believing in good faith that it was protected in regard to entry.”

The chief executive said in January it would withdraw from the treaty if it needed to.

Dean also suggested that it would “be reasonable to refer or transfer asylum claimants” to the mainland and Macau as – unlike Hong Kong – both joined the 1951 Refugee Convention.

But former security secretary Alistair Asprey, who held office when the UN Convention against Torture was extended to the city in 1992, said it “would be a mistake for Hong Kong to back out of its responsibilities under the convention”.

He also said: “I do not think that Hong Kong could or should try to pass its responsibilities under the convention to others.”

James Tien Pei-chun, honorary chairman of the pro-government Liberal Party, suggested the reintroduction of closed camps. “Automatically, fewer people would come,” he said.

Lawyer Ho said Hong Kong is not alone in dealing with false claimants, which is why there are screening systems. ­“Improve the system, send the message that we know what we are doing and the numbers of false claimants will come down.”