Patricia Ho examines the immigration amendment bill, which was gazetted on 4 December 2020, and outlines the potential harmful consequences for those seeking asylum in Hong Kong
Alarm Bells Rung by the Immigration (Amendment) Bill 2020
The Immigration (Amendment) Bill 2020 ("Bill") was recently published with the aim to improve the efficiency of the screening procedures of non-refoulement claims and introduce enhanced measures in respect of law enforcement and detention of asylum seekers. It seeks to tackle problems such as unlawful employment and “delaying tactics” adopted by asylum seekers. However, the proposed amendments have drawn criticisms from civil society concerned with the human rights of this vulnerable population. Upon an initial review of the Bill, it seems likely that some of the proposed amendments contravene the Hong Kong Bill of Rights and leading jurisprudence in this space, let alone international treaty obligations. More generally, it sends a message the authorities are taking a hostile approach in devising policies and laws regarding asylum seekers.
Let us first have a look at the proposed procedural reforms of the screening mechanism. It is known the success rates of the screening performed by the Immigration Department is strikingly low. Multiple judicial reviews highlighting faulty decisions have brought to light the poor quality of decisions. This background makes it a concern that proposed amendments place a heavy onus on the claimant to lodge all their evidence relating to the claim within 7 days after they file their appeal. Claimants only have 14 days to lodge their appeals during which many have to look for legal representation which can be a difficult process. Many may depend on the help of pro bono counsel or NGOs who do not usually have the resources to do this work speedily. On appeals, many claimants will try to obtain expert evidence which will require more time. It will be a serious fault in the process if claimants are unable to submit expert evidence owing to this restriction. Another small but notable procedural change is that claimants will not be considered to have lodged an appeal if there are minor procedural inadequacies in their appeal forms such as a failure to sign their name. This unreasonable emphasis on formality, expressly allowing no exceptions, is particularly unsuitable for an often vulnerable group of claimants.
The most disconcerting procedural reform is the proposed permission given to immigration officers and appeal board adjudicators to require a claimant to go through with their proceedings in a language other than the one they requested so long as they “reasonably consider” that the claimant or the witness “is able to understand and communicate in it”. No guidance is given to how officers or adjudicators may reach such conclusions, so one must question how they can do so when they would presumably not be able to communicate with the claimants in the first place. This seems to create a broad range of possible procedural unfairness, which surely will defeat the Immigration Department’s agenda to streamline the process when their processes can prima facie be amenable to judicial review.
Perhaps the most problematic part of the proposed reforms lies in the strengthening of the basis for immigration detention. The Bill allows factors such as “number of persons pending removal from Hong Kong”, and “manpower and resources constraints” to be taken into account when deciding whether the period of detention is lawful. It intentionally prolongs detention based on administrative and bureaucratic inefficiency. This obviously contravenes the Hardial Singh principles which stressed that the period of detention is only justified for a reasonable period, which is a matter to be determined by courts. The authorities must act with reasonable diligence and expedition to effect removal (one must query why they do not focus reforms on the efficiency of the administration). The proposals contravene the clear and established principle that immigration detention must be applied as an exceptional measure of last resort, for the shortest period, and only if justified by legitimate purpose.
An issue that raises the loudest alarm is the arming of officers at the Castle Peak Bay Immigration Center (“CIC”). The Bill authorizes immigration officers to possess firearms and offensive weapons including pepper spray, steel batons and baton guns without prior consent from the Commissioner of Police. Bearing in mind that immigration detention is an administrative function, not a penal one, this development reinforces the portrayal of refugees and asylum seekers as ‘criminals’. There are already reports exposing the use of punitive solitary confinement and strip searches in CIC. With the lack of an effective complaints and monitoring system, the chance of disproportionate use of force and abuse is further escalated. At the root of this escalation of hostility is the fact that CIC is manned by the Immigration Department and not the Correctional Services Department. There is an issue that the party seeking to remove individuals detained is the same as the one imposing detention terms and conditions. This conflict of interest should be addressed.
The above is by no means an exhaustive list of the proposed amendments or the potential problems arising from them. It is hoped in the coming months some meaningful debate will ensue in the Legislative Council that will lead the government to take into account the concerns of civil society and reconsider their proposals.
One would not normally take issue with reforms to streamline or speed up an assessment system for refugees; however, if the means to achieve this aim will strip the basic protections of the rights of claimants then the legal community at large should be concerned. Reforms to improve efficiency in this regard must always be in line with the high standards of fairness set down by our courts, reflecting those set out in international instruments.