Amendment will not stop the flush of immigrants coming to Hong Kong - Immigration policy must be reviewed comprehensively

The Legislative Council Panel on Security discussed on "Torture claim screening: enhanced mechanism and way forward" today. However, the Legislative Council has passed the Immigration (Amendment) Bill 2009 [1] after its third reading and the amendments in the Bill will make it an offence for illegal immigrants (IIs) to take up employment or establish or to join a business in Hong Kong. The Hong Kong Human Rights Monitor (HKHRM), Amnesty International Hong Kong (AIHK), and Hong Kong Refugee Advice Centre (HKRAC) believe that the amendments in the Bill will not serve as a solution to the issue, but instead skirts around it. We believe that the main cause to the large number of illegal immigrants is the slow review procedure of the applications of CAT [2] claimants and asylum seekers.

When problems with immigration policies arise, only miniscule and short-term changes are made to the Immigration Bill and the internal guidelines of the Immigration Department. This practice does not protect the rights of CAT claimants, asylum seekers, and foreign domestic helpers. Therefore, we strongly advise the government to establish a legal framework that can simultaneously handle and review the applications of CAT claimants and asylum seekers, and improve the visa arrangement procedure.

We believe the legal procedure of handling and reviewing CAT claimants' and asylum seekers' applications must be just and effective. Moreover, articles 6 and 7 of the ICCPR [3] and other international standards regarding non-refoulement must be implemented into the statutory procedure.¹ The government should provide adequate resources to ensure the review procedure is not over-extended. According to the UNHCR guidelines, the concerned departments should issue a preliminary decision within one month of interviewing CAT claimants or asylum seekers.

We recommend the government refer to the practice of other governments in order to improve the visa issuance system in the HKSAR. In United Kingdom, asylum seekers have the right to work if they have not received a preliminary decision within 12 months of their application, given that the procedural delay was not caused by the asylum seeker. In Australia, asylum seekers are issued various temporary visas depending on their application status. If the asylum seeker faces economic difficulties or their employers have applied for permanent visas for them based on their skills, they may apply for temporary visas that have no work restrictions.

Employment is the key to ensure financial needs, development of work and communication skills, self-worthiness, and understanding of society of CAT claimants and asylum seekers. We advise the government to grant CAT claimants and asylum seekers the right to work if a preliminary decision cannot be issued within 6 months of their application, given that the procedural delays were not caused by the applicants, they should be given the right to work in Hong Kong. This recommendation protects CAT claimants' and asylum seekers' right to work while preventing the mechanism from being abused.

We stress that the current immigration policy is inadequate. The government must review the Immigration Ordinance and relevant policies in order to protect the rights of everyone, including CAT claimants, asylum seekers, foreign domestic helpers, and other non-Hong Kong citizens.