Certificate of Entitlement Scheme

Under Article 24(2)(3) of the Basic Law, persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents shall be permanent residents of the HKSAR and enjoy right of abode (ROA). The Immigration Ordinance stipulates that in order for a person to qualify for ROA under Article 24(2)(3) of the Basic Law, at least one of his parents must be a Chinese citizen who has ROA at the time of his birth. The Government introduced the Certificate of Entitlement (C of E) Scheme on July 10, 1997, under which a person's status as a permanent resident of the HKSAR under Article 24(2)(3) of the Basic Law can be established only by his holding a valid travel document (i.e. a One Way Permit) with a valid C of E affixed to it. This arrangement enables systematic verification of ROA claims and ensures orderly entry. Since July 1, 1997, 114 708 C of E holders have entered Hong Kong.

Shortly after the reunification, legal proceedings were instituted by ROA claimants to challenge the 'time-of-birth' requirement in the Immigration Ordinance and the requirement that persons eligible for ROA under BL 24(2)(3) are subject to the exit approval provided for under BL 22(4). This ultimately led to the judgment of the Court of Final Appeal (CFA) given on January 29, 1999. The court ruled, among other things, that the two requirements were unconstitutional.

The HKSAR Government fully respected the CFA's power of final adjudication, but believed that the true legislative intent of BL 22(4) and BL 24(2)(3) as reflected in the relevant background materials relating to these articles was not the same as had been interpreted by the CFA. A special survey conducted by the Census and Statistics Department showed that as a result of that judgment, 1.6 million persons in the Mainland would become eligible for ROA. Their prospective arrival would create unbearable social and economic burdens on the community. The public was anxious that the HKSAR should find a speedy solution to the serious problems arising.

Following a careful examination of all possible legal options and with the strong support of the community and backed by a majority vote of support of the Legislative Council, the Chief Executive requested the State Council to seek an interpretation from the Standing Committee of the National People's Congress (NPCSC) on the relevant provisions of the BL. The NPCSC gave an interpretation on BL 22(4) and BL 24(2)(3) on June 26, 1999. The NPCSC interpretation clarified that persons born of Hong Kong residents in the Mainland are eligible for ROA only if, at the time of their birth, at least one of their parents has ROA under Article 24(2)(1) or Article 24(2)(2) of the Basic Law. Furthermore, eligible persons must apply for exit approval from the Mainland authorities before coming to Hong Kong for settlement. The CFA confirmed unanimously in its judgment given on December 3, 1999 in a subsequent court case that the NPCSC interpretation is valid and binding and the interpretation has effect as from July 1, 1997.

On the same day the NPCSC interpretation was given, the Government announced a 'Concession' decision based on the principle that 'judgments previously rendered shall not be affected'. In accordance with the decision, those who were in Hong Kong between July 1, 1997 and January 29, 1999 and who claimed ROA with the Director of Immigration of which the Director had a record would not be affected by the NPCSC interpretation. About 3 700 persons benefited from this 'Concession' decision.

About 5 000 persons jointly applied for judicial review to challenge the 'Concession' decision. They were represented in the Ng Siu Tung case and Sin Hoi Chu case. These 5 000 persons claimed to have arrived and claimed ROA in Hong Kong at different times before the 1997 handover to the post-NPCSC interpretation period. They argued that they likewise should not be affected by the NPCSC interpretation.

The Court of First Instance ruled against the judicial review applicants on June 30, 2000. The Court of Appeal upheld the Court of First Instance's judgment on December 11, 2000 that the status of all persons claiming right of abode had to be determined in accordance with the NPCSC interpretation given on June 26, 1999, unless they were accepted by the Director of Immigration as being within the 'Concession'. The applicants appealed to the Court of Final Appeal. Hearing was completed in early September 2001 and judgment had not been delivered by the end of the year.

A number of individual ROA claimants also brought similar judicial review proceedings against the Government. At the end of the year, there were 9 193 such claimants. The court had been dealing with the applications for leave to apply for judicial review. Many of the applications had been rejected, resulting in some appeals that were pending hearing.

In the meantime, removal actions against illegal immigrants and overstayers continued to be taken in accordance with the law.