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Hong Kong courts

Hong Kong families lose appeal against immigration rule denying stay of loved ones in city

Applicants now fear uncertain future and their lawyer says authorities ‘sacrifice families on the altar of immigration control’

PUBLISHED : Monday, 26 March, 2018, 8:30pm
UPDATED : Monday, 26 March, 2018, 10:20pm

Three families had their futures thrown into limbo on Monday when a court rejected their appeal against Immigration Department decisions disallowing their loved ones to remain in Hong Kong.

The affected people are foreign nationals in situations such as being married to a permanent resident in Hong Kong or having children born in the city who are under their care.

In turning down the joint appeal that would potentially split families, the Hong Kong Court of Appeal ruled that the Basic Law, the city’s mini-constitution – and other international treaties to which the city is a signatory – did not uphold the protection of family rights to the extent these would trump stringent policies on border control.

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The appeal stemmed from judicial reviews lodged in 2014 by two Filipino mothers and a Malian father, who took the matter to court after they were refused extensions of stay or dependent visas by the Immigration Department.

This was despite the two mothers having children – some of whom have been granted residence in Hong Kong – to care for in the city, while the Mali man is married to a mainland immigrant.

In a 91-page judgment handed down on Monday, vice-president of the appeal court Johnson Lam Man-hon wrote: “By reason of the special circumstances of Hong Kong and the imperative need to maintain restrictive immigration policies and practices, there is a very onerous duty and responsibility placed upon the director whose policies the courts are generally institutionally ill-equipped to gainsay.”

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He added the immigration director had a duty to maintain a “delicate and difficult balance” between keeping Hong Kong a society open to foreigners and upholding the public interest to exercise stringent border control amid scarce public resources.

While acknowledging there might be “dire consequences” for the families, High Court chief judge Andrew Cheung Kui-nung said the constitution and international treaties they cited were not on their side in this case. “These rights simply have no application and are not engaged in the present immigration context,” he wrote.

These rights simply have no application and are not engaged in the present immigration context
Judge Andrew Cheung Kui-nung

Members of the families told the Post that they were “sad” and “disappointed”, and feared for their uncertain future. Human rights lawyer Mark Daly, who represented them, said the judges’ decision was to “sacrifice families on the altar of immigration control”.

“The Court of Appeal, by dismissal of these three cases, exhibited its firm resolve to protect the wide powers of the Director of Immigration even at the expense of the rights of its own permanent residents, some of whom are mere children,” he said.

Desiree Rante Luis – one of the three applicants – is a Filipino mother who came to Hong Kong as a domestic helper in 1991. She married her husband, also from the Philippines and a domestic helper in the city, in 1997.

She gave birth to three children, and at least one of them became a permanent resident in 2010. Two of her children, both boys, suffer from medical conditions such as heart disease, so Luis was granted an extension of stay to look after them. Her extension ended in 2012 and immigration authorities concluded that the children could depend on their father.

The court exhibited its firm resolve to protect the wide powers of the Director of Immigration even at the expense of the rights of its own permanent residents, some of whom are mere children
Human rights lawyer Mark Daly

Another applicant, Filipino mother Milagros Tecson Comilang, was left to raise her daughter – who was born in the city – after her husband “Ahmed”, a permanent resident, left her and withdrew his support for her dependency status.

Rejecting her wish to extend her stay, authorities said there were no legally recognised rights in her case nor “exceptional circumstances to justify an extension on humanitarian or compassionate grounds”.

Salifou Dembele, originally a visitor from Mali, married his wife Huang Luyun, a mainlander who had acquired permanent resident status. They have a daughter, Nadia. But the department concluded that Huang, who lives in public housing, would not be able to give Dembele a living standard “well above the subsistence level in Hong Kong, and provide him with suitable accommodation”, which is a legal requirement.

All of the applicants argued that they were protected by Article 37 of the Basic Law, which states that Hong Kong residents’ “right to raise a family freely shall be protected by law”. Their family rights were also guaranteed in the Bill of Rights, as well as the International Covenant on Civil and Political Rights Law and International Covenant on Economic, Social and Cultural Rights, they said.

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But Mr Justice Jeremy Poon Shiu-chor, who also presided over the case, wrote that the legislative intent of that Basic Law provision was only to ensure Hong Kong residents had the “right to procreate and foster children freely and voluntarily” – separate from the then one-child policy in mainland China. Poon added that even if the clause applied, it would only be valid for the city’s residents.

He said the Bill of Rights also stated that the rights it guaranteed should not affect border control. As for international treaties, he said they only gave a general direction and would not matter unless their clauses were inserted into local laws.

Comilang said she was sad about the judgment and worried that she might have to leave her daughter behind. “She needs me ... And I also need her,” she said.

Luis expressed disappointment and said she was concerned for her sons’ future medical treatments.