• 來回地獄總要折返人間|戴啟思

  • 發布日期:2021-01-02 14:00
  • 來回地獄總要折返人間|戴啟思

 

‘Home is the place where, when you have to go there, They have to take you in.’

Death of the Hired Man by Robert Frost

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Closing borders in the time of Covid-19 makes people anxious. Foreign countries half a world away impose quarantine restrictions overnight, and it becomes impossible to make that long-promised trip to a dear one who has been counting the days until they see you again.



There is concern about inward travel too. Will it be possible for a relative to find a flight and come here and not have to spend 21 days in a soulless hotel room before seeing you?



These anxieties have been heightened recently. The Government has toughened quarantine restrictions at a time of the year when close relatives, many of them students, travel thousands of miles so that they may be with their loved ones. Is it possible that they might be turned away in the name of public health?



The Government has also published a new immigration bill that deals with perceived problems in handling asylum claims made by foreign nationals.



Although the bill is mainly about making changes to the screening procedures and the detention of unsuccessful claimants, some of its provisions seem to have the potential to apply to persons who are not seeking asylum in Hong Kong.



One clause of the bill enables the Director of Immigration to give carriers directions that named passengers must not be carried on board ships and aircraft.



The clause looks like it gives the Director the power to direct that the carrier you booked to travel to Hong Kong must not carry you, even though you are a permanent resident and only travelled abroad for a brief holiday.



The clause also appears to apply to outward travel. The Director might require the captain of the aircraft to take you away from Hong Kong to start a new life in, say, Canada, to refuse to let you board the flight.



I think that these fears are ill-founded.



People forget that the Director of Immigration’s principal responsibility is managing the entry, stay and departure of people who have no right to stay in Hong Kong. If you are a permanent resident, you are immune from immigration controls. Even if you are not a permanent resident but are only a resident working to acquire the seven-year ordinary residence required to become a permanent resident, you are entitled to travel in and out of Hong Kong.



Residents must submit to inspection of travel documents when leaving or entering Hong Kong. Once the resident status is established-usually by producing an HKSAR passport or identity card-immigration officers must allow you to proceed, whether you leave Hong Kong or are returning from a trip.



This absolute entitlement arises from the right of abode, which comes with permanent resident status. ‘Right of abode’ is a common law concept incorporated in Article 24 Basic Law. It means that Hong Kong is your home.



It means that the Director of Immigration cannot impose immigration restrictions on you when you enter, stay in or leave Hong Kong. The right also includes the right not to be deported for any crimes committed in Hong Kong or anywhere else.



The right of abode goes beyond what international human rights law requires. Article 12 of the International Covenant on Civil and Political Rights (“ICCPR’), which applies to the HKSAR, guarantees that no one shall be arbitrarily deprived of the right to enter his or her country. That means that a returning citizen might be turned away on arrival if there was a good reason to do so. However, the ICCPR also says that if you enjoy more extensive rights under the laws of a country or territory, it is not permissible to rely on the minimum rights contained in the treaty to derogate from those rights



Article 31 Basic Law enhances the right of abode. It makes explicit what is implicit in Article 24. It guarantees the right to travel and to enter or leave the region. The Article applies to residents too, meaning that they must be admitted on their return if they leave Hong Kong, even though they may be subject to a two or three-year visa.



Of course, the rights in Article 24 and 31 are subject to laws which have nothing to do with immigration. A court can prevent a resident from travelling by making a court order, such as is common in bail decisions where a defendant will be ordered not to leave Hong Kong until after the criminal case is over. However, once the issue is over, the temporary restriction on travel ends.



You need to read the new bill bearing in mind that it is meant to apply only to persons who are subject to immigration controls.



As for excluding residents for public health reasons, that is not permissible as it is not compatible with the right of abode and the right to travel must include the right to return; otherwise, it is an illusory right. As the American poet Robert Frost said in his poem Death of the Hired Man, “Home is the place where, when you have to go there,

They have to take you in.”

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