Monday, April 28, 2014

The Enduring ‘Problem ‘ of Refugee Protection in Hong Kong

The HKSAR stands unique in the world as a post-industrialized state which is not subject to the terms of the 1951 Convention relating to the Status of Refugees (“the Refugee Convention”) despite both its former colonial (the United Kingdom) and current (the PRC) superstructures having ratified and implemented its provisions in turn. Nonetheless, the Hong Kong government has very recently introduced a unified screening mechanism (USM) that will evaluate claims under the Torture Convention, the ICCPR and Refugee Convention. This new system arose, not from government initiative, rather the effects of government inertia with unmanageable backlogs of claimants reaching into the several thousands.

Space precludes a detailed examination of the weaknesses of the refugee protection system the USM replaced (for further, see Ramsden and Marsh). It remains to be seen whether the USM is able to improve matters for those on the ground who are subject to its revised procedures. Needless to say, the difficult personal circumstances experienced by refugees recognized under the mandate of the United Nations High Commissioner for Refugees (“UNHCR”) in Hong Kong, and those of torture claimants screened-in by the Administration pursuant to the Convention Against Torture (“CAT”) are unlikely to improve due to the concerning low levels of welfare support on offer through the government.

Refugee protection presents a very specific set of issues to the SAR vis-à-vis the status of the socio-economic rights of these individuals. In particular, Hong Kong has a firm policy of not absorbing those who achieve refugee status or are successful torture applicants. Instead, those mandated refugees are required to wait for inordinately long periods of time, sometimes spanning half-decades in poor living conditions with further limits of food, health, education and employment.

Bearing in mind the long delays experienced in re-settling mandated refugees, the insufficiency of socio-economic provision for this marginalized group has been increasingly voiced by interested parties including NGOs set up to fill the ‘welfare gap’ left by government (state support available to these persons has been known to consist of no more than a bag of uncooked rice). The problem of insufficient provision has been exacerbated by the unwillingness of the Hong Kong government to allow successful claimants the right to work. The administration’s current policy on permitting refugees the right to work is a draconian one. The circumstances in which the Director of immigration will permit a refugee to work amounts to a de facto ban on the refugee population seeking paid employment in Hong Kong (in effect, only in cases where the restriction can induce intense mental and physical suffering or humiliation of a degree sufficient to constitute inhuman or degrading treatment under the terms of the CAT).

This governmental stance ignores that the fundamental right of refugees to work in gainful employment is not only embedded in articles 17, 18 and 19 the Convention itself, but also beyond the borders of this framework, it is now well recognized that refugees and those seeking subsidiary protection enjoy inalienable economic rights as human rights under various international instruments, such as the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), the International Covenant on Civil and Political Civil Rights (“ICCPR”), the United Nations Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities, and various provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, with seminal guidance on the subject offered by Michigan Guidelines on the Right to Work (2010).

Nevertheless, a recent decision of the Court of Final Appeal in Hong Kong (GA v Director of Immigration [2014]) shot down any remaining hope that the right to work would be extended beyond its current restriction. Instead the exclusion clause contained in article 39(1) of the Bill of Rights Ordinance (“BORO”) was relied on by the Court of Final Appeal, which isolates non-nationals from the full enjoyment of their rights under international law in order, it is said, to protect the Region’s fragile territorial boundaries. The judgment is a very disappointing outcome for genuine claimants who face years ahead with no other option but the indignity of reliance on meagre welfare provision with no real opportunity to provide for themselves and any family members they may have with them. The CFA decision has resulted in the unsustainable destitution of asylum seekers, refugees and torture claimants, who must inevitably survive on the charity of others both before and after a historically inefficient and chronically slow administrative system delivers a decision on their case.

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