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The right of abode entitles a person to live and work in Hong Kong without any immigration restrictions or conditions of stay. Individuals with this right are called permanent residents. As a special administrative region of China, Hong Kong does not have its own nationality law and natural-born residents are generally Chinese citizens. The right of abode can be acquired by foreign nationals after meeting a seven-year residency requirement and confers most rights that are usually associated with citizenship, including the right to vote.

Contents

BackgroundEdit

Hong Kong was a British colony from 1842 until the transfer of sovereignty in 1997. Right of abode eligibility was accordingly closely tied to British nationality law during colonial rule. All British subjects previously had unrestricted access to live and work in any British territory. Parliament gradually restricted this from 1962 to 1971, when subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the United Kingdom.[1] Hong Kong followed suit and imposed greater restrictions on subjects from outside the territory, introducing belonger status for British subjects born in the colony.[2] Nationality law reform in 1981 reclassified the vast majority of Hong Kong belongers as British Dependent Territories citizens (BDTCs).[3]

The border between Hong Kong and mainland China was not regulated for over 100 years after establishment of the colony.[4] Border controls did not exist until 1950, after communist victory in the Chinese Civil War.[5] Although the border was guarded, the Hong Kong government was relatively lax on deporting illegal immigrants due to a shortage of unskilled labour and allowed large numbers of them to register as residents.[6] Still, colonial authorities held almost unlimited discretionary deportation powers over Chinese migrants until 1971, when those resident in the territory for more than seven years were given the right to land, exempting them from immigration control though they could still be deported for serious crimes.[7] Immigration became more restricted in 1974 at the start of the Touch Base Policy. Under this system, illegal immigrants were immediately deported but those who managed to reach urban areas of Hong Kong and find housing accommodation would be given legal status. This policy ended in 1980, after which all free migration was stopped.[6]

The British and Chinese governments entered negotiations over the future of Hong Kong in the early 1980s and agreed on the Sino-British Joint Declaration in 1984. The basic principles for the right of abode are set as part of this treaty[8] and further defined in the Hong Kong Basic Law,[9] which encompass the right to land with the added entitlement that a bearer cannot be deported. Belonger status was renamed permanent resident status in 1987, when landed Chinese residents were given the right of abode along with Hong Kong BDTCs.[10] All BDTCs that did not have a connection with a remaining British Dependent Territory other than Hong Kong lost BDTC status on 1 July 1997, and the vast majority of them became Chinese nationals. Former BDTCs could only retain British nationality if they had registered as British Nationals (Overseas) prior to the transfer of sovereignty.[11]

Acquisition and lossEdit

 
Passport observation indicating the holder has the right of abode in Hong Kong

Becoming a Hong Kong permanent resident has slightly different requirements depending on an individual's nationality. Acquisition by birth operates on a modified jus soli basis; Chinese nationals born in Hong Kong are automatically permanent residents, while foreign nationals must have at least one parent who already has the right of abode.[12] Children born outside Hong Kong acquire the right of abode if they are also Chinese nationals at birth. This is usually conferred by descent unless the child's parents have obtained permanent residency in another country or foreign citizenship.[13] However, while Chinese nationals born in mainland China to Hong Kong permanent resident parents do have the right of abode, they must first apply for a One-way Permit with mainland authorities before they can claim permanent residency.[14]

Nonresidents seeking to become permanent residents must be ordinarily resident in Hong Kong for at least seven years before becoming eligible for the status.[12] Ordinarily resident in this context excludes certain classes of people, including central government officials, foreign domestic helpers, and incarcerated individuals.[15] Chinese nationals may qualify using any seven-year residence period, while foreigners are only eligible on the basis of the seven years immediately preceding their applications.[12] Individuals from mainland China seeking to settle in Hong Kong are additionally subject to emigration control by the central government.[16]

Permanent residents who are not Chinese nationals automatically lose the right of abode if they are absent from Hong Kong for more than three years. These individuals are then given the right to land, which also allows them unrestricted access to live and work in the territory.[17] Foreign permanent residents can naturalise as Chinese nationals and become exempt from automatic loss, but are required to renounce their previous nationality on successful application.[18]

Prior to 1997, acquisition of the right of abode was dependent on British nationality. Individuals born overseas to Hong Kong-connected BDTCs also became BDTCs and Hong Kong permanent residents by descent.[19] After the transfer of sovereignty, if these individuals did not also acquire Chinese nationality or return to Hong Kong within three years, they would be nonpermanent residents with the right to land.[17]

Individuals who lost permanent resident status before 1997 can immediately resume the right of abode under limited circumstances. Those who returned to settle in Hong Kong within 18 months after the transfer of sovereignty were automatically regranted the status, while former residents who return after that period can only immediately regain the right of abode if they have not been absent from the territory for any period longer than three years.[12]

Rights and privilegesEdit

Residents with the right of abode are unconditionally allowed to reside and work in Hong Kong and cannot be deported from the territory, regardless of nationality.[20] They are eligible for welfare benefits[21] and entitled to vote in territorial elections.[22] Permanent residents with Chinese nationality are eligible to hold territorial passports, which are different from those issued to mainland residents.[23] Those who additionally do not possess the right of abode in foreign countries may stand for office in geographical constituencies of the Legislative Council[24] and can serve as principal officials of the government.[25] A limited number of residents with foreign nationality or right of abode in other countries may be elected to functional constituency seats in the legislature.[26][27]

RestrictionsEdit

Residents who are Chinese citizens do not have automatic residence or employment rights in mainland China. The central government issues Home Visit Permits to these residents for travel purposes[28] and Residence Permits if they intend to reside or work in the mainland for longer than six months.[29] Residents without Chinese nationality are not eligible for either permit and must enter the mainland using their foreign passports. Similarly, all permanent residents are subject to immigration controls in Macau, and must obtain residence permits if living there for more than one year.[30]

ControversyEdit

The eligibility criteria for right of abode as defined in the Basic Law allows a much broader group of people to qualify compared to requirements enforced by the Immigration Department.[8] This discrepancy has been a contentious issue and repeatedly challenged in court since the transfer of sovereignty. Because constitutional issues require central government review,[31] litigation on right of abode issues has highlighted conflicting differences between the legal systems of the territory and mainland[32] and xenophobic sentiment among local residents.[33]

Children born in mainland ChinaEdit

In 1999, the Court of Final Appeal (CFA) issued two judgements that granted right of abode in Hong Kong to children born in mainland China with at least one parent who had the right of abode,[34] including those whose parents had become a permanent resident after the time of birth.[35][36] The regional government expected that 1.67 million new immigrants from the mainland would seek to acquire the right of abode on these terms over the next decade,[37] and projected that Hong Kong would not be able to absorb such a sudden population increase.[38] Although the CFA is the highest territorial court, the Court clarified that its authority to interpret the Basic Law derives from the Standing Committee of the National People's Congress (NPCSC).[36] The government subsequently asked the Standing Committee to provide a new interpretation of Basic Law Article 24, which defines right of abode eligibility, and Article 22, which stipulates that people from other parts of China are required to seek central government approval before entering Hong Kong.[38] The NPCSC duly issued an interpretation that reinforced requirements for mainland exit procedures and restricted eligibility for the right of abode to the criteria as it was before the CFA rulings.[39]

While the interpretation resolved the immediate immigration crisis, the constitutionality and legality of bypassing the Court of Final Appeal was widely debated. Many legislators, especially the pro-democracy camp,[38] and the Hong Kong Bar Association believed that amending the Basic Law would have been the appropriate course of remedy.[40] They argued that arbitrary NPCSC interpretations without formal requests for them from the CFA would weaken the principle of "one country, two systems", damage the rule of law, and erode the authority of the CFA as the territory's final appellate court.[39] Although constitutional judicial review is routine in common law systems, Beijing viewed the process as a limit to its authority as the sovereign power and preferred more flexible interpretation of the law.[41] Additionally, the regional government believed that revising the Basic Law would delay resolving the issue for too long since amendments require review by the entire National People's Congress, which only meets once each spring.[38]

Children of mainland visitorsEdit

The Court of Final Appeal issued a further ruling in 2001 that all Chinese nationals born in Hong Kong would have right of abode in the region, regardless if neither parent was a permanent resident.[42] This change directly led to a growing trend of birth tourism; increasing numbers of expectant mothers from the mainland entered Hong Kong to give birth with the express purpose of exploiting the healthcare system and giving their children permanent residency in the territory.[33] Overcrowding in hospital maternity wards became a major factor in contributing to growing consternation among residents and the emergence of a hostile environment against mainland tourists.[43]

Foreign domestic helpersEdit

Foreign domestic helpers (FDHs), live-in household workers mostly from the Philippines, constitute the largest non-Chinese minority group in Hong Kong.[44] They are not considered ordinarily resident in the territory and cannot claim permanent residency.[45] Racial tension between these workers and local residents,[46] pervasive perceptions of FDHs as being lower class,[47] and a general public unwillingness to integrate them[46] led some FDHs to more actively protest their disadvantaged legal status.[48] However, in 2011, the Court of Final Appeal upheld existing government exclusion of FDHs from right of abode eligibility.[49][50]

See alsoEdit

ReferencesEdit

CitationsEdit

  1. ^ Evans 1972.
  2. ^ Chen 1988, pp. 647–648.
  3. ^ 1996 Population By-Census, p. 31.
  4. ^ Law & Lee 2006, p. 219.
  5. ^ Chen 1988, p. 640.
  6. ^ a b Law & Lee 2006, p. 220.
  7. ^ Chen 1988, p. 644.
  8. ^ a b Basic Law Chapter III Article 24.
  9. ^ Sino-British Joint Declaration Annex 1.
  10. ^ Chen 1988, pp. 673–674.
  11. ^ "British National (Overseas) and British Dependent Territories Citizens" (PDF). Archived (PDF) from the original on 11 December 2018. Retrieved 8 January 2019.
  12. ^ a b c d Immigration Ordinance Schedule 1.
  13. ^ "Frequently Asked Questions - Right of Abode". Immigration Department. Retrieved 6 March 2019.
  14. ^ Standing Committee Interpretation Regarding Article 22(4) and Article 24(2)(3) of the Hong Kong Basic Law.
  15. ^ Immigration Ordinance Section 2(4).
  16. ^ Basic Law Chapter II Article 22.
  17. ^ a b "Loss of Hong Kong Permanent Resident Status". Immigration Department. Retrieved 6 March 2019.
  18. ^ "Naturalisation as a Chinese National" (PDF). Immigration Department. March 2015. Retrieved 6 March 2019.
  19. ^ White 1988, pp. 235–236.
  20. ^ Immigration Ordinance Section 2A.
  21. ^ Chia 2012, p. 10.
  22. ^ Guidelines on the Legislative Council Election 2016, pp. 9–11.
  23. ^ "Application for HKSAR Passport". Immigration Department. Retrieved 6 March 2019.
  24. ^ Guidelines on the Legislative Council Election 2016, p. 42.
  25. ^ Basic Law Chapter IV Articles 44, 55, 61, 71, 90, 101.
  26. ^ Guidelines on the Legislative Council Election 2016, pp. 43–44.
  27. ^ Basic Law Chapter IV Article 67.
  28. ^ Leung, Nancy Ling Sze (30 August 2013). A new population policy challenge towards the cross border birth issue in Hong Kong (PDF). IUSSP International Population Conference. Busan.
  29. ^ Su, Xinqi (16 August 2018). "New ID card will give Hong Kong, Macau and Taiwan residents same access to public services as mainland Chinese counterparts". South China Morning Post. Retrieved 11 January 2019.
  30. ^ "Entry and Exit of Non-residents". Public Security Police Force of Macau. Retrieved 7 March 2019.
  31. ^ Basic Law Chapter VIII.
  32. ^ Chan, Cora (9 November 2016). "How Hong Kong's courts interpret Beijing's interpretation of the Basic Law may yet surprise". South China Morning Post. Retrieved 8 March 2019.
  33. ^ a b Butler & Suntikul 2017, p. 59.
  34. ^ Ng Ka Ling and Another v the Director of Immigration.
  35. ^ Chan Kam Nga v the Director of Immigration.
  36. ^ a b Six-monthly Report on Hong Kong January–June 1999, p. 4.
  37. ^ "Interpretation : A "legal and constitutional" option" (Press release). Hong Kong Government. 18 May 1999. Retrieved 8 March 2019.
  38. ^ a b c d Six-monthly Report on Hong Kong January–June 1999, p. 5.
  39. ^ a b Six-monthly Report on Hong Kong January–June 1999, p. 6.
  40. ^ Tong, Ronny K.W. (5 May 1999). "Open Letter to the Chief Executive on the Right of Abode Case" (Letter). Letter to Tung Chee-hwa. Retrieved 8 March 2019.
  41. ^ Kam 2002, p. 634.
  42. ^ Director of Immigration v Chong Fung Yuen.
  43. ^ LaFraniere, Sharon (22 February 2012). "Mainland Chinese Flock to Hong Kong to Give Birth". The New York Times. Retrieved 8 March 2019.
  44. ^ Chia 2012, p. 5.
  45. ^ Chia 2012, pp. 5–6.
  46. ^ a b Chia 2012, p. 9.
  47. ^ Chia 2012, p. 7.
  48. ^ Chia 2012, pp. 10–11.
  49. ^ Chia 2012, p. 11.
  50. ^ Vallejos v Commissioner of Registration.

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PublicationsEdit

Legislation and case lawEdit