CURRENT VOLUME

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VOLUME 8
ISSUE 1

August 2019

VOLUME 8
ISSUE 2

January 2020

 
 

When ‘qualifying’ as a refugee gets you permanent ‘illegal’ status in Hong Kong

By Annie Li


Debates around the categorical difference between refugees and migrants are often underpinned by the idea that refugees enjoy better protection than other migrants. However, this is not necessarily the case in Hong Kong. Advocacy for both the application of the Refugee Convention in Hong Kong alongside non-Refugee Convention forms of admission and stay needs to be stepped up to ensure individuals are offered the protection they need.

A view over Hong Kong. Photo Credit: Annie Li.


The debate about whether refugees are categorically different to migrants and so should be treated as non-migrants is often informed by the idea that refugees enjoy better protection than other migrants. However, this is not true everywhere. In some jurisdictions, refugee status severely limits access to rights.


In Hong Kong, the 1951 Refugee Convention does not apply, as China has not extended its application to the territory.[1] However, the Government of Hong Kong has a policy of giving non-refoulement protection to those that meet an adapted definition of ‘refugee’ under the Refugee Convention, as well as those that face risks of torture or violation of certain rights enshrined in the Hong Kong Bill of Rights (Hong Kong Bill of Rights Ordinance 2017). Generally, only persons subject to removal can apply for this protection, and their ‘illegal immigrant’ status remains even when non-refoulement protection is granted. Their children, even if born in Hong Kong, also inherit this irregular status.


This classification severely limits refugees’ ability to access rights. Most significantly, refugees in Hong Kong have no right to take up paid or non-paid work and have limited freedom of movement. Furthermore, once a refugee leaves Hong Kong, there is no guarantee they can re-enter the city. While UNHCR may help refugees resettle to another place, as of March 2018, only four people out of 75 whose claims have been substantiated under the Refugee Convention grounds since Hong Kong began assessing claims in 2014 have been resettled (Hong Kong Immigration Department 2018). Others risk potentially being stuck in permanent illegality.


This means that, contrary to a common understanding and the principle of non-discrimination, the process of seeking refugee status can result in an irreversible situation and a significantly worse one than for those who come to Hong Kong as migrants in pursuit of employment, family reunification or studies. This differential treatment is based on the legal pathway taken for migration, which may have no correlation with whether the person is in need of protection. There are indeed people who have moved as labour migrants but who also face risks in their home countries which relate to one of the three grounds for non-refoulement recognised in Hong Kong: persecution, torture, and violation of rights. Justice Centre Hong Kong (2017), for example, found two individuals who came to Hong Kong on a work visa because they faced risks of violence inflicted by State officials or domestic violence and forced labour.


In order to enrich discussions on non-Refugee Convention forms of protection in light of the adoption of the Global Compact for Migration in December 2018, the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the law firm DLA PIPER (DLA PIPER and OHCHR 2018) released a mapping of national practices of admission and stay based on human rights and humanitarian grounds. Among the ten jurisdictions studied in the mapping, Hong Kong was the only one where protection does not and will never lead to regular status.[2] While it is possible to apply for family unification, an employment or student visa in Hong Kong, the likelihood of success is uncertain as applicants are regarded as irregular migrants.[3]


The case of Rose[4] (Anderson & Li 2018) illustrates the dilemma those working in Hong Kong while being in need of protection can face. As a child from a very poor rural area in a country in Asia, Rose was forced by her father to marry his creditor as repayment of his debts. She had to work for her husband’s family for sixteen hours a day and was often slapped, hit, kicked and raped by her husband. Her parents were too poor to get proper medical treatment for her so, in desperation, they borrowed money to pay an agent to arrange work for her as a domestic worker in Hong Kong. Becoming a domestic worker in Hong Kong was both a means to flee and to support her family financially. She did not know about the non-refoulement protection mechanism in Hong Kong. The fact that she came to Hong Kong on a work visa but not as an asylum seeker had no correlation with whether or not she needed protection.


Although Rose worked for more than seven years in Hong Kong, her situation was compounded by a lack of access to permanent residence. Due to the government regulations on migrant domestic workers, she could not access a permanent residence no matter how long she had worked in Hong Kong.[5] Her visa expired when her last employment contract ended and she could not prepare the paperwork for another contract in time. She was then subject to removal. While overstaying, she gave birth to a child out of wedlock and therefore felt even more unsafe to return to her country of origin. The birth of her child also made it difficult for Rose to continue to work as a migrant domestic worker in Hong Kong. Even if the Immigration Department were to issue her an employment visa after overstaying, Rose, like all migrant domestic workers in Hong Kong, would be required to live together with their employers. However, there are few employers who would host a worker accompanied by an infant. With no employment contract, Rose made a claim for non-refoulement protection, even though this claim will not lead to regular status in Hong Kong either.


As Rose’s case shows, further research is needed to explore the accessibility of various migration paths and the possibility to change between different legal statuses, including in the case of labour migrants, such as domestic workers like Rose, and non-refoulement claimants. This knowledge can help us to better assess the protection needs and differential treatment of individuals who reside in Hong Kong under such different legal statuses. The recent study published by OHCHR and DLA Piper (2018) was a first step towards informing discussions in Hong Kong on this subject and highlighted the need to provide people, including refugees and other migrants, a regular status and the protection they need.


Crucially, instead of debating whether refugees are or are not migrants, it is integral that policymakers, United Nations agencies and civil society spend more time on advocating for better protection for all persons outside their country of origin in vulnerable situations. In addition, advocacy for both the application of the Refugee Convention in Hong Kong alongside non-Refugee Convention forms of admission and stay needs to be stepped up to ensure individuals are offered the protection they need.


Annie Li is the Senior Research and Policy Officer at non-governmental organisation Justice Centre Hong Kong. Annie holds a Bachelor of Social Sciences (Government and Laws) degree and a Bachelor of Laws degree from the University of Hong Kong, and studied at Sciences Po Paris as an exchange student.


[1] The United Kingdom did not extend the application of the 1951 Refugee Convention to Hong Kong before the handover of Hong Kong to China in 1997, and China did not extend it to Hong Kong either thereafter (See United Nations Treaty Collections, at https://treaties.un.org/Pages/showDetails.aspx?objid=080000028003002e&clang=_en).


[2] Other than while acting as a prosecution witness for human trafficking cases. (DLA PIPER and OHCHR, 2018, p.13).


[3] Grounds for stay as regular migrants in other jurisdictions studied in the mapping include being a victim of domestic violence, coming from a country with an environmental disaster or having serious illnesses. (DLA PIPER and OHCHR, 2018, p.10, 14 and 16).


[4] This name is a pseudonym to protect the individual’s identity.


[5] According to section 2(4), Immigration Ordinance, Cap. 115, a person shall not be treated as ordinarily resident in Hong Kong during any period in which he or she remains in Hong Kong as a “foreign domestic helper”. This excludes migrant domestic workers from access to the right of abode under Article 24(4) of the Basic Law, which states that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region are permanent residents of Hong Kong. Other subsections of Article 24 are applicable to Chinese nationals and citizens, persons born in Hong Kong or persons who had the right of abode in Hong Kong only before the handover in 1997, and are therefore generally not applicable to migrant domestic workers.


Bibliography

ANDERSON, J. and Li, A. (2018) ‘Refugees or Victims of Human Trafficking? The case of migrant domestic workers in Hong Kong’, Anti-Trafficking Review 11: 52-68.

HONG KONG (2017). Hong Kong Basic Law. Available from: https://www.basiclaw.gov.hk/en/basiclawtext/index.html (accessed 12 September 2019).

HONG KONG (2017) Hong Kong Bill of Rights Ordinance, Cap. 383, Hong Kong e-Legislation. Available from: https://www.elegislation.gov.hk/hk/cap383 (accessed 12 September 2019).

HONG KONG (2018) Immigration Ordinance, Cap. 115, Hong Kong e-Legislation. Available from: https://www.elegislation.gov.hk/hk/cap115 (accessed 12 September 2019).

HONG KONG IMMIGRATION DEPARTMENT (2018) Meeting of the Subcommittee to Follow Up Issues Relating to the Unified Screening Mechanism for Non-Refoulement Claims of the Legislative Council of Hong Kong on 27 March 2018, at 11:56. Available from: https://webcast.legco.gov.hk/mobile/player.aspx?MeetingID=M18030058&Type=V&SelectLang=F (accessed 14 August 2019).

JUSTICE CENTRE HONG KONG (2017) Refugee-Human Trafficking Nexus Research, Hong Kong. Available from: http://www.justicecentre.org.hk/framework/uploads/2014/03/Report_compressed.pdf (accessed 18 February 2019).

DLA PIPER and OHCHR (2018) Admission and Stay Based on Human Rights and Humanitarian Grounds: A Mapping of National Practice. Available from: https://www.ohchr.org/Documents/Issues/Migration/OHCHR_DLA_Piper_Study.pdf (accessed 18 February 2019).

United Nations Treaty Collections. Available from: https://treaties.un.org/Pages/showDetails.aspx?objid=080000028003002e&clang=_en (accessed 12 September 2019).



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