Wednesday, July 24, 2019

Karen Kong Comments on the CFA's Decision on the Right to Family in the Immigration Context (IACL-AIDC Blog)

19 June 2019
On 4 April 2019, Children’s Day, the Hong Kong Court of Final Appeal (‘CFA’) delivered the judgment of Comilang, Milagros Tecson & Anor v Director of Immigration [2019] HKCFA 10, but it was by no means a day for celebration for the children involved in this case. The combined appeals were brought by two families. In each case, the appellants included a non-resident mother who was an ex-foreign domestic helper with no right of abode or right to remain in Hong Kong, and her Hong Kong resident or permanent resident minor child(ren). Both mothers were refused application for an extension of stay in Hong Kong to take care of their children. The issue was whether the Director of Immigration had a duty to take into account the family rights of the children and their non-resident mothers with no right to remain in Hong Kong, when considering whether to grant the mothers permission to stay in Hong Kong and be with their children. 
     The parent appellants argued that they and their children enjoyed a right to family under: (i) Art 37 of the Basic Law (the mini-constitution of Hong Kong), (ii) Arts 14, 19(1) and 20(1) of the Hong Kong Bill of Rights (BOR) which incorporates the International Covenant on Civil and Political Rights (ICCPR), (iii) Art 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and (iv) Art 3 of the Convention on the Rights of the Child (CRC). Thus, it was argued, the Director of Immigration had a legal obligation to take into account such rights when considering their applications.
     The CFA ruled against the appellants on all grounds. The Court applied the immigration exception in the Hong Kong Bill of Rights Ordinance (‘HKBORO’) to limit the rights enjoyed by the appellants. As a result, non-resident mothers enjoy very limited human rights protection under the BOR, the Basic Law and other human rights Covenants in the application of immigration legislation in Hong Kong... Click here to read the full post.

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