Written By: Alison Wong
Edited By: Anisha Ratnam
Giammarco Boscaro - Unsplash
Introduction
Over 14,000 people are seeking legal protection in Hong Kong [1]. This article examines the extent to which refugees and asylum seekers in Hong Kong are protected under international law. Furthermore, it will discuss how more protection could be given. It is suggested that domestic incorporation plays a crucial role, but the rights of the groups are vulnerable to derogation.
Background
Hong Kong is not a signatory to the Refugee Convention (RC) in 1954, or a party to the Refugee Protocol (RP) in 1968. There are no customs or general principles toward states’ approach to determining refugee status or granting asylum, and the United Nations High Commissioner for Refugees (UNHCR) has no power to mandate actions from states [2]. Hong Kong hence has discretion over its policies. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT Convention) was extended to Hong Kong in 1992. It disapproves any State Parties to expel deport a person to another State, provided that the person would be in danger of being subjected to torture [3]. Before 2014, the Hong Kong government relied on the UNHCR to determine torture claims. Since 2014, those seeking protection can lodge non-refoulement claims under the unified screening mechanism (USM). The grounds could be torture or any absolute, non-derogable rights in the Hong Kong Bill of Rights. Successful claimants cannot be deported back to their home countries, instead, they will be referred to the UNHCR to determine their refugee status. They will then be resettled to a third country if recognised as refugees [4].
Legal protection for refugees and asylum seekers
It is argued that Hong Kong has never been in a suitable position to determine refugee status and grant asylum. When Hong Kong was a British colony, there were concerns over Hong Kong’s capacity to receive refugees. Parliamentary Under-Secretary of State for Armed Forces, Lord Trefgarne, said that Hong Kong’s ‘territorial small size’ and ‘geographical vulnerability’ for illegal immigrants made the British government hesitant to extend the RC and RP to Hong Kong [5]. After Hong Kong’s return to China in 1997, the Chinese government had a similar attitude and did not extend the treaties to Hong Kong either [6]. In C and Others v Director Of Immigration And Another, the government submitted that they would not conduct their refugee status determination in accordance with international law, owing to worries over ‘economic immigrants’ and the amount of ‘expenses and expertise’ required [7]. The Hong Kong government continues to adopt the firm-line policy not to determine refugee status or grant asylum, hence the UNHCR procedures are the main protection for refugees and asylum seekers’ legal status.
Economic cost considerations should not outweigh human rights obligations. The court rejected the government’s argument above, as the judges were more concerned that those deported to countries would face the risk of torture or persecution under the CAT Convention [8]. The reliance on the UNHCR’s rulings to decide deportation was insufficient to protect refugees and asylum seekers, considering that many of them are forcibly displaced from their homes. The judges relied on international law to emphasise human rights and justice, which influenced the government to set up the USM. The USM was used to determine non-refoulement claims from 2014 onwards, a step forward to protect refugees and asylum seekers with domestic law [9]. This suggests that signing international treaties is often an effective and powerful tool for the judiciary to force the government to act.
Despite these developments, judges could not compel the government to conduct its mechanism for refugees and asylum seekers, as a result of not extending the RC and RP to Hong Kong. This highlights the downside of state discretion in international law. When states are autonomous in deciding whether to sign international treaties, they might not uphold human rights. Having domestic legislation to recognise refugees and asylum seekers is indeed not equivalent to protecting them, as shown by Indonesia’s Presidential Regulation. The Regulation aims to assist and protect refugees but the government did not do so in the 2020 crisis of Rohingya refugees [10]. It is nonetheless believed that if Hong Kong has legislation to determine refugee status and grant asylum, the judiciary will protect the groups with its commitment to upholding human rights. Refugees and asylum seekers will no longer need to file a non-refoulement claim and then rely on the UNHCR to establish their legal status. This would effectively shorten their processes to obtain legal protection, and offer more safeguards to them.
Non-refoulement claims
Non-refoulement claims appear to offer sufficient protection to refugees and asylum seekers by incorporating international law domestically. In Secretary for Security v Sakthevel Prabakar, the court set high standards of fairness for non-refoulement claims, in order to provide every opportunity for claimants to establish their claims [11]. Claimants who are refused can appeal to the Torture Claims Appeal Board and further file a judicial review [12]. Hong Kong is prominently one of the few Asian jurisdictions that has a mechanism for non-refoulement claims and allows judicial review for non-refoulement claims [13].
Singapore is not a signatory to the RP or RC either, both Singapore and Hong Kong jurisdictions thereby do not determine their refugee status or grant asylum. The difference is that Singapore did not sign the CAT Convention while Hong Kong did. This explains why Singapore has no legal frameworks for non-refoulement [14]. Refugees and asylums in Singapore can be deported back to their home countries where they could be subject to torture without having their cases heard. Hong Kong’s non-refoulement claims under USM, in comparison, offer slightly more protection to prevent refugees and asylum seekers from torture. It illustrates that international treaties can encourage states to take action to protect refugees and asylum seekers, but it still depends on the state’s incorporation domestically.
It is worth noting that the substantiation rate for non-refoulement claims in Hong Kong is 1.3%, which is one of the world’s lowest [15]. This sheds light on the problems with implementing the USM. The initial stage of the USM requires claimants to submit a written signification, but they are only entitled to legal representation after that stage. Claimants who are illiterate, speak minority languages, or traumatised by torture would find the signification challenging without legal representation [16]. Their claims might not even get past the initial stage, indicating a lack of access to court and procedural justice. Even if their claims are heard, the quality of decisions can sometimes be poor. Some examples include dismissing sexual and gender-based violence as a private act rather than torture and making basic mistakes about claimants’ country of origin [17]. The USM also denies substantive justice and has insufficient safeguards for those threatened by torture and persecution.
Another problem stemmed from the updated removal policy in December 2022, in which non-refoulement claimants could be removed from Hong Kong immediately after their claims failed. Over 150 claimants were deported before their appeals were complete in 2022-3 [18]. Such a policy derogates the claimants’ rights to appeal and access to courts. It would raise the difficulty for claimants to follow up an appeal in Hong Kong, due to the distance and a lack of access to legal representation in their home countries. There is also a risk that those deported claimants would be subject to torture in their home countries, which is against the CAT Convention. This further demonstrates how international law only outlines the rights that state parties are obliged to uphold, while the extent of measures for refugees and asylum seekers depends on the state’s responses.
Humanitarian assistance/living standards
The Hong Kong government supports the living of refugees and asylum seekers lodging non-refoulement claims, as it funds the International Social Service Hong Kong Branch (ISS-HK) to provide humanitarian assistance to non-refoulement claimants. It is undeniable that the level of assistance is insufficient for Hong Kong’s high cost of living. The amount of allowance such as food and housing has not been updated since 2014, failing to keep in line with inflation. Many refugees and asylum seekers therefore struggle below the poverty line [19]. Although there is room for improvement, the Hong Kong government provides some form of welfare and socio-economic protection to refugees and asylum seekers. Therefore, refugees’ and asylum seekers’ welfare can be protected by actions of non-profit organisations, rather than international law.
Working rights as refugees and asylum seekers in Hong Kong are in contrast severely undermined. In GA v Director of Immigration, the court ruled that the International Covenant on Economic, Social and Cultural Rights (ICESCR) is not incorporated into Hong Kong law [20]. The right to work in ICESCR does not apply to Hong Kong, and non-refoulement claimants are forbidden from taking any form of employment unless for circumstances approved by the Immigration Department [21]. The process might seem reasonable, claimants are, however, required to apply once every six months, with application taking a few weeks. Claimants are not entitled to humanitarian assistance from the ISS-HK to support their living during those periods. It is uncoincidental that many of those who committed drug trafficking are refugees and asylum seekers in Hong Kong. Drug trafficking ironically has a lower maximum penalty than being employed without legal status to work, which often leaves refugees and asylum seekers with no choices except for drug trafficking to live in the high-cost city [22]. It is unreasonable to expect a state to provide a high standard of living for the groups, but the current situation leaves the rights to work of the groups unprotected.
Conclusion
Hong Kong is relatively ahead in protecting refugees and asylum seekers in comparison to other Asian countries. It is not a signatory to the RP and RC but to the CAT Convention. The judiciary still managed to use the CAT Convention, a source of international law, to influence the government to establish the USM for assessing non-refoulement claims. Refugees and asylum seekers in Hong Kong are still quite unprotected because they are prone to injustice resulting in their deportation and potentially being subject to torture. Their living standards are also low without the rights to work and sufficient welfare assistance. International law therefore only offers refugees and asylum seekers in Hong Kong limited protection, as domestic incorporation remains the key detriment of their rights and welfare.
REFERENCES
[1] Legislative Council Panel on Security, ‘Handling of Non-refoulement Claims’ LC Paper No. CB(2)1078/2023(03), 1
[2] Song L, Chinese Refugee Law and Policy, (Cambridge University Press, 1st edn, 2020), 138-139
[3] Convention against torture and other cruel, inhuman or degrading treatment or punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (UNCAT) art 3
[4] Song (n 2) 142-144
[5] HL Deb 27 February 1985, vol. 460, col. 968
[6] Song (n 2) 140
[7] [2013] HKCFA 21, [2013] 4 HKC 563 [47]
[8] ibid [49]-[52]
[9] Song (n 2) 143-144
[10] Tobing D.H., ‘Connecting the Obligation Gap: Indonesia’s Non-Refoulement Responsibility Beyond the 1951 Refugee Convention’, 2021 8(3) ALS
[11] Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43 [2004] 7 HKCFAR 187 [51]
[12] Hong Kong Legislative Council Commission, Judicial review and non-refoulement claims (ISSH11/18-19, 2018)
[13] Song (n 2) 143-144
[14] UNHCR Submission for the Universal Periodic Review – Singapore – UPR 38th Session, 2
[15] HKSAR Government, ‘Press release – LCQ4: Non-refoulement claims’ <https://www.info.gov.hk/gia/general/202311/15/P2023111500348.htm> accessed 22 November 2024
[16] Justice Centre Hong Kong, ‘Submissions to the Legislative Council Panel on Constitutional Affairs’ Meeting on 16 November 2020’ LC Paper No. CB(2)247/20-21(01), 3-4
[17] Justice Centre Hong Kong, ‘Parallel report to the Committee on the Elimination of Discrimination against Women Complimenting the ninth periodic report submitted by Hong Kong, China’ (2021), 6-8
[18] Yahoo News (Hong Kong, 10 October 2023) < https://hk.news.yahoo.com/%E4%BF%9D%E5%> accessed 22 November 2024
[19] The Refugee Concern Network, ‘Parallel report to the Committee on Economic Social and Cultural Rights Completing the fourth periodic report submitted by Hong Kong, China’ (2020), 3-4
[20] GA v Director of Immigration [2020] 2 ILR 101
[21] [2014] HKCFA 14 [2014] 17 HKCFAR 60 [59]-[63]
[22] The Refugee Concern Network (n 18), 12-13
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