How the social and legal impact of the right of abode saga still affects us today
By Katie Cheng & Catherine Chiang
On July 1 1997, the Union Jack was lowered and the flag of the People’s Republic of China raised over Hong Kong – ushering an end to 156 years of British rule and the birth of the Hong Kong Special Administrative Region. Two days later, on the first working day after the handover, hundreds of people, many of them children, lined up outside the Immigration Department in Wan Chai to claim the right of abode in Hong Kong.
It was the beginning of a saga which would drag on for years, colour the relationship between Hongkongers and Mainlanders and have implications for Hong Kong’s rule of law that legal experts say are still being felt today.
The 1984 Sino-British Joint Declaration on the future of Hong Kong stated that the children of Hong Kong permanent residents of Chinese nationality, who were born outside of the territory would have the right of abode in Hong Kong. This was later incorporated in the Basic Law, under Article 24. With the Basic Law now in effect, these children were claiming their residency rights.
This sparked fear of a massive influx of abode-seekers from the Mainland among the public and the government. Within the space of just one week, the Provisional Legislature – an interim appointed body that replaced the pre-handover Legislative Council – ruled that abode-seekers would have to first return to the Mainland and obtain a “Certificate of Entitlement” before they could come to Hong Kong. The abode-seekers fought repatriation and took their case to the courts. A series of legal battles culminated in the Court of Final Appeal’s ruling on January 29 1999 in favour of the children.
But it turned out that the Court of Final Appeal’s decision was not final. In May 1999, then Chief Executive Tung Chee-hwa sought an interpretation of Article 24 by the National People’s Congress Standing Committee (NPCSC). The interpretation overturned the Court of Final Appeal’s ruling so that only those mainland children born after either of their parents obtained permanent residency in Hong Kong were entitled to the right of abode.
Barrister and former Legislative Council Legal Functional Constituency representative Margaret Ng Ngoi-yee says this set a bad precedent. “The first interpretation cast a very long shadow over the rule of law in Hong Kong,” says Ng. There have been seven interpretations since then.
Ng, who represented some of the abode seekers in court, is particularly irked that the Chief Executive referred the matter to the NPCSC, when according to the Basic Law, that should be a decision for the Court of Final Appeal to make. “It’s [done] without a referral. It’s freestanding,” Ng says. “However independent your judges, some political organisation in the Mainland can tell you what to do.”
Ng adds that after the 1999 interpretation, lawyers representing the government have used the possibility of going to the NPCSC for interpretation as a threat to the courts.
Ng was not alone in believing the government had undermined the Basic Law and sacrificed Hong Kong’s rule of law for the sake of convenience. The legal profession held its first silent march in protest against the interpretation. But despite support from her peers on the interpretation issue, Ng came under political pressure and under fire from society at large for helping the abode seekers. But she has no doubt that no matter how tough the fight was, it was one that needed to be fought.
Ada Fu, now 47, is a veteran of the fight for abode rights who took part in numerous protests, marches and hunger-strikes. Her grandparents have long resided in Hong Kong, and her father joined them in 1982 when Fu was 12. Eight years later, her mother left for Hong Kong as well, but according to the law of the People’s Republic of China, she could only take one child with her, so she took her 15 year-old son. Fu was left behind.
She came to Hong Kong on a one-week travel visa in 1999 after the Court of Final Appeal ruling and thought it would not take long to apply for and get residency rights. She recalls that during the first week of her stay, the government did not contact her but after a week, the Immigration Department asked her to register, which she did. She says she did not realise she had broken the law and could be arrested for overstaying.
“The government wasn’t preparing IDs for us, they were collecting our information to deport us,” Fu says. “They played us.”
Fu was repatriated on July 13, 2002 and did not gain residency until 2010, on the basis of her marriage to a Hong Kong permanent resident.
Ironically, in 2011, the government implemented an Overage Children Policy under which Fu would have been eligible to apply for a one-way permit to join her family in Hong Kong. The policy benefits eligible children who were under 14 when one of their parents became a permanent Hong Kong resident before 2001. Fu says she would rather apply for abode through this channel.
“[To get abode] sooner or later doesn’t matter to me, but [getting your rights through] lining up in the queue of family reunion is more meaningful,” says Fu. “Hong Kong is my home, but it is a home with a wall forbidding me to enter. It is hard to climb over it.”
Like Fu, Yu Xiaoqing, now 44 came to Hong Kong in 1999. She went back to the Mainland in 2003 and applied for a travel visa every three months to care for her disabled mother in Hong Kong. Yu eventually applied for right of abode under the Overage Children Policy and became a Hong Kong resident in 2012.
When Varsity met her in January, she was taking part in a sit-down protest for those abode-seekers who are left out of the scheme. Although she already has residency, she still cares about the abode seekers who are still struggling. Every time there is a campaign or protest, she shows up and supports them.
Yu says she has a great sense of belonging to Hong Kong and regards the city as her home. “In my whole life, living in Hong Kong is the best because here people can strive for what they want,” she says. “As a Hong Kong resident and as a part of society, I should care about social justice. It is also a fight for me. I hope everyone can be protected by law and enjoy equal rights.”
Yu thinks Hong Kong people have become less compassionate over the course of the past two decades and the relationship between the Mainland and Hong Kong has become strained and fractious. And for this, she believes the government is to blame for its divisive policies and strategies.
Jackie Hung, 47, a project officer of the Justice and Peace Commission of the Hong Kong Catholic Diocese, agrees with Yu and sees the separated families as victims of government policy. As for the abode saga, Hung accuses the then Secretary for Security Regina Ip Lau Suk-yee for “creating divisions in society out of malice”.
In April 1999, after the Court of Final Appeal’s ruling and leading up to the NPCSC interpretation, Ip’s bureau released statistics predicting that 1.67 million children would have abode rights and rush into Hong Kong in 10 years as a result of the ruling. The government said this would cost taxpayers HK$70 billion and the government would have to find 6,000 hectares of land to house them.
Hung recalls that government officials from different departments would speak in the Legislative Council every day, warning about how this huge influx of immigrants would “flood” the education system, the housing market and healthcare resources. For Hung, the projections were exaggerated and the “1.67 million … a ridiculous downright lie”.
However the warnings did feed into public anxiety and fear which was played up in the media before the interpretation request was made.
“We were using the ‘tyranny of the majority’ to overturn the rights of the minority. This is not the spirit of democracy,” Hung says.
To a certain extent, the alarmist rhetoric over the abode seekers has had a lasting impact on how new immigrants from the Mainland are still perceived today.
Susanne Choi yuk-ping, a sociology professor at the Chinese University of Hong Kong, says it was easy for the government and media to feed people’s fears over the abode saga because there was an underlying sense of insecurity and identity crisis in Hong Kong at the time of the handover.
Choi says that over time, as China’s economic and geopolitical clout increased, Hong Kong appears to have become less important to the Mainland, while Beijing’s interference in local affairs has increased. People feel they are losing control over their own future. She says mainstream Hong Kong society projects its fear and feelings of disgust with the Chinese government, as well as its discrimination against the disadvantaged classes, onto new immigrants from the Mainland. “Mainland immigrants are the scapegoats of China’s politics,” she says.
On the other hand, Choi says the SAR government expects to get a share in the fruits of China’s growing economy, in schemes such as the Individual Visit Scheme (IVS) that was introduced in July 2003. “It is a commercial and economic policy, which has a total disregard for livelihood issues,” says Choi.
The scheme puts pressure on Hong Kong’s transportation and public spaces, but people often do not distinguish between immigrants and visitors and stigmatise them as one group of Mainlanders, adds Choi.
According to the Security Bureau, there have been around 212.6 million visits under the individual visit scheme since it started in 2003, with an average of more than 27 million visits each year in the past four years. Around 879,000 people from the Mainland came to join their families between 1997 and 2015. Meanwhile, more than 202,000 children who were born in Hong Kong to non-Hong Kong parents between 2001 and 2012, automatically got residency rights.
While some Hong Kong people may dislike new immigrants because they think they drain public resources, others see them as an impediment to Hong Kong’s democratic development because they are more likely to support pro-Beijing political parties.
Ma Ngok, a professor from the Department of Government and Public Administration at CUHK, co-authored a study on mainland migrants and democratisation in 2016. It found mainland migrants are more likely to vote for pro-establishment candidates and support conservative governance. Ma explains that most mainland migrants come to Hong Kong for economic reasons rather than to pursue freedom and democracy. He says they do not identify with democracy, and pro-establishment parties have more resources and money to win their support. Ma adds this is likely to change if they are gradually socialised by Hong Kong but the pace of socialisation is slow.
But CUHK sociologist Susanne Choi disagrees. “Most migrants are not supporters of pro-establishment camps. They don’t know their political stances. They know nothing about Hong Kong’s political environment,” Choi says.
She says her research shows that 13 per cent of immigrants are pro-establishment, 18 per cent of them are pro-democracy and more than 50 per cent are politically neutral. She says it is for the pro-democracy parties to try to win their support.
Former abode seeker Yu Xiaoqing says new immigrants can also support democracy, but “the real democracy is not only about voting, but also about whether we know how to include all people in the agenda of democracy”.
Edited by Lynette Zhang