Hong Kong’s Strict Immigration Control: The Family as the Unit of Non-Protection and Deprivation of Human Rights Protection

Abstract

The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law) provides in Article 39 the continuing in force of the provisions of the International Covenant on Civil Political Rights (ICCPR) “as applied in Hong Kong” and the implementation of those provisions through the laws of the Hong Kong Special Administrative Region (HKSAR). Yet, the HKSAR courts have, in a series of cases, interpreted Article 39 to provide for the domestication of the treaty reservation of immigration legislation and its application in Hong Kong in respect of persons who are subject to immigration control to the effect that the administration of strict immigration control policy by the HKSAR Government is not subject to judicial scrutiny for compliance with fundamental human rights protected under the Basic Law and international human rights instruments applicable to Hong Kong. In April 2019, the Hong Kong Court of Final Appeal held in its judgment in the Comilang case that the Director of Immigration was not required to take into account the enjoyment of family rights in Hong Kong when the Director makes a decision on whether a foreign national parent should be permitted to remain to take care of her minor child and live in Hong Kong as a family. This judgment turned the recognition in international human rights law of the family as the fundamental group unit of society for protection on its head. This Paper critiques this judgment. and concludes with observations on its domestic and international implications.