Opinion | Immigration reform: Ending asylum abuse and exposing the scaremongers

By Grenville Cross

For many years, Hong Kong's system for the handling of non-refoulement claims has been in need of drastic reform, and steps are finally being taken. The non-residents who make these claims fall into three categories, being people who fly in from abroad, or are illegal immigrants, or are overstayers unwilling to leave. The claims they make with the Immigration Department are invariably bogus, and systemic abuse is now an integral feature of the process. Although some 99 per cent of asylum claims are unmeritorious, vast resources are nonetheless devoted to their consideration.

Once an asylum claim is rejected by the Immigration Department, there are invariably appeals to the Torture Claims Appeals Board, which has had to recruit a veritable army of retired judicial officers and lawyers. It not only has a chairman, who is a former judge, assisted by four deputy chairmen, but also a mind-boggling 62 ordinary members, all of whom, like the lawyers who represent the claimants, are paid out of the public purse. Once the Board has rejected a claim, the asylum seekers, with their lawyers, generally launch judicial reviews in the High Court, and this inevitably affects the judiciary's capacity to handle its regular workload.

As of October 31 2020, there were over 8,000 claimants engaged in judicial review proceedings, creating huge strains on the courts, and delaying the listing of other cases. Even after a judicial review is dismissed, applications to appeal can still be lodged with the Court of Final Appeal. The only real winners are the lawyers, all of whom are paid for out of the public purse.

One way or another, there are now over 13,000 unsuccessful claimants remaining in Hong Kong, and they have lived here for anywhere between a few months and 10 years plus. Every year, the taxpayers are footing huge bills, and the government is now shelling out approximately HK$1.1 billion annually in the handling of asylum claims. Quite clearly, this is money that should be devoted to worthwhile causes, like child welfare, nurses' salaries or road safety.

Whereas some of the claimants are taking up unlawful employment, others are becoming threats to peace and public safety, with arrests for drug trafficking, robbery and crimes of violence being by no means uncommon. About 1,320 unsuccessful claimants have either been imprisoned, remanded, criminally investigated or prosecuted, while others have simply absconded. Given that the problems are not going away, the government has been obliged to review its strategy for the handling of non-refoulement claims, and it has now identified four areas which require reform in its Immigration (Amendment) Bill 2020.

As a priority, the government plans to reduce at source the numbers of non-ethnic Chinese illegal immigrants and overstayers who may lodge non-refoulement claims in Hong Kong. It also wants to expedite the processing of claims and appeals under its Unified Screening Mechanism, by reducing the time for the application process. Once claims have finally been rejected, the repatriation of claimants is to be accelerated, without cases going into limbo. More effective law enforcement is also envisaged, with the maximum penalty for employers who employ prohibited persons rising from HK$50,000 and 3 years' imprisonment to HK$500,000 and 10 years' imprisonment, and the maximum fine for an aircraft owner or his agent who allows a passenger to travel without valid documentation rising from HK$10,000 to HK$100,000. If, moreover, a claimant poses, or is likely to pose, a threat or security risk to the community, he or she may be detained, which is an improvement on the present situation, in which detention is only possible if somebody breaks the law or is held pending deportation.

A key facet of these arrangements is, therefore, the proposal to screen out non-genuine travelers at source, before they can fly to Hong Kong to launch their asylum claims. Indeed, in 2018, the International Civil Aviation Authority updated its Convention on Aviation Security, and this included a new mandatory requirement for its members, through local laws, to put in place the Advance Passenger Information system (API). This system, given its manifest utility, has already been adopted in over 90 countries, including Australia, Canada, and the US, as well as in the European Union's member states, and Hong Kong is now catching up.

The API serves two distinct functions. Whereas, on the one hand, it requires airlines, in the interests of aviation safety, to provide passenger and crew member information to immigration authorities in the destination countries before flight departures, enabling undesirables to be removed, it also, on the other, improves the enforcement capability of the immigration authorities everywhere. For Hong Kong, it is of particular value in enhancing measures to prevent potential non-refoulement claimants from setting foot in the city, clearly a laudable objective.

But however meritorious the new arrangements may be, there have been those, in the US and elsewhere, but also including the Civic Party and its associate, the Hong Kong Bar Association, who have sought to spread fear. Whereas the government's proposals are designed to provide the API with the legal backing it requires to make it effective in Hong Kong, the alarmists have claimed that there is a covert agenda, and that the Bill is actually designed to stop local residents from leaving, which is patently absurd. Indeed, on April 28, the Secretary for Security, John Lee Ka-chiu, pledged that the system would only ever target "inbound flights to Hong Kong, but not outbound flights departing the city".

In any event, those stoking concerns are obviously unfamiliar with, or else choosing to overlook, the Basic Law. Had they troubled to read its Article 31, they would have known that all residents have "freedom to travel or enter or leave", provided, of course, they are legally entitled to leave, and not subject, for example, to a warrant of arrest, and are possessed of "valid travel documents". The Hong Kong Bill of Rights Ordinance's Article 8 likewise protects liberty of movement, with everyone being "free to leave Hong Kong", albeit subject to restrictions "provided by law". As if these constitutional protections were not enough, the Security Bureau has now indicated that the ambit of the travel ban will be spelt out in the Bill's subsidiary legislation, which should put this non-issue to bed once and for all.

In reality, therefore, the Bill aims to screen people of all types before they can come to Hong Kong, and thereby to help resolve the chaos caused by the proliferation of worthless asylum applications. Doing nothing is not an option, and deep-seated problems cry out for redress. Although there will always be those who relish scaremongering at Hong Kong's expense, they cannot be allowed to demonize proposals designed to put an end to the abuse of its asylum system.

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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