Removal Assessment and Litigation Branch
The Removal Assessment and Litigation Branch, which oversees the Removal Assessment and Litigation Division, was established on 20 June 2016. The Branch and its Division are under the command of an Assistant Director and a Principal Immigration Officer respectively.
The Removal Assessment and Litigation Division is responsible for screening claims for non-refoulement protection on all applicable grounds1 against another country lodged by persons not having the right to enter and remain in Hong Kong. The Division also provides support for the comprehensive review of the strategy of handling non-refoulement claims, and handles appeal/petition and litigation cases relating to non-refoulement claims and enforcement.
Unified Screening Mechanism
To maintain effective immigration control and for public interest, persons not having legal status to remain in Hong Kong, including illegal immigrants, overstayers or persons refused entry by the Department upon arrival at Hong Kong, should be removed from Hong Kong in accordance with the Immigration Ordinance as soon as practicable.
Pursuant to a number of court rulings, if a person to be removed to another country claims that he would face risks of torture, violation of his absolute and non-derogable rights under the Hong Kong Bill of Rights, or persecution if he is removed to that country, then the Department must withhold the claimant's removal to that country until his claim is finally determined as unsubstantiated through procedures that meet 'high standards of fairness'.
To fulfill its obligations under the United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Hong Kong Bill of Rights and the Immigration Ordinance, and uphold the relevant court rulings, the government commenced operating a Unified Screening Mechanism (USM) in March 2014 to determine non-refoulement claims on all applicable grounds. Procedures under the USM follow the statutory procedures under Part VIIC of the Immigration Ordinance, which were passed into law by the Legislative Council in July 2012 following its detailed scrutiny and came into operation in December 2012.
Under USM, claimants are provided with reasonable opportunities to establish their claims including through stating relevant details on a non-refoulement claim form and attending a screening interview, after which the Department will inform the claimants of its decision and reasons in writing. Claimants aggrieved by the Department’s decision have a right to lodge an appeal, which would be considered by the statutory and independent Torture Claims Appeal Board (the Appeal Board).
Throughout the screening process, claimants are also provided with all necessary assistance, including publicly-funded legal assistance (via a scheme presently operated by the Duty Lawyer Service (DLS)), interpretation/translation services provided by qualified persons, and medical examination if the alleged physical or mental condition of a claimant is in dispute and is relevant to the claim.
At the commencement of the USM in March 2014, there were a total of 6,699 non-refoulement claims pending screening. As at the end of 2016, a further 13,525 claims were received while 6,383 claims were determined, including 48 substantiated claims (in which five claims were substantiated by the Appeal Board on appeal), and 3,860 claims were withdrawn, bringing the total number of claims pending screening to 9,981. Among those pending claimants, around 80 per cent originated from India, Pakistan, Vietnam, Bangladesh and Indonesia.
After the commencement of the USM, there has been a significant rise in non-refoulement claims lodged by non-ethnic Chinese illegal immigrants (NECIIs), overstayers and persons having been refused permission to land by the Department upon arrival. Since the implementation of the USM, the monthly average number of claims received as at the end of 2015 was 440, representing a 331 per cent increase over the monthly average number of 102 claims during the period from 2010 to 2013. Government expenditure arising from the handling of non-refoulement claims in 2016-17 amounted to over $1.1 billion, representing a significant increase over previous years. The social implications brought by the influx of non-refoulement claimants caused considerable public concern. The Chief Executive announced in his 2016 Policy Address that the government would conduct a comprehensive review of the strategy of handling non-refoulement claims.
Comprehensive Review
The government commenced a comprehensive review of the strategy of handling non-refoulement claims in 2016 to address fragilities in four areas, namely pre-arrival control, screening procedures, detention, and removal and enforcement.
Pre-arrival Control
To tackle the problems at source, the government seeks to prevent illegal immigrants or doubtful visitors with higher immigration risk from coming to Hong Kong. About half of the non-refoulement claimants pending screening were NECIIs having entered Hong Kong illegally. In recent years, the number of NECIIs from the Mainland has increased significantly and the majority originated from visa-required countries, such as Vietnam, Pakistan and Bangladesh. The Department is very concerned about the situation, and has been providing strong support (including liaison and intelligence exchange) to the Hong Kong Police Force and the Mainland authorities to combat these illicit smuggling activities and those criminal syndicates that assist them.
Apart from stepping up enforcement against criminal syndicates, to achieve a stronger deterrent effect, the government put into effect the Immigration (Unauthorised Entrants) (Amendment) Order 2016 in May 2016 to expand the definition of ‘unauthorised entrants’ to cover the vast majority of NECIIs by including the eight major source countries of NECIIs in addition to Vietnam, i.e. Pakistan, Bangladesh, India, Nepal, Sri Lanka, Somalia, Afghanistan and Nigeria, so as to increase the penalties against smuggling of illegal immigrants from these countries. Persons/syndicates who arrange or assist the passage of unauthorised entrants to or their remaining in Hong Kong are punishable under Part VIIA of the Immigration Ordinance, Cap. 115 and liable to up to 14 years of imprisonment and a $5 million fine.
The remaining half of the claimants were mainly overstayers, among them over 30 per cent were Indian nationals enjoying visa-free concession. To strike a balance between providing convenience for bona fide Indian visitors and maintaining effective immigration control, the Department has introduced the Pre-arrival Registration (PAR) for Indian Nationals with a view to preventing those with high immigration risk from setting out on a journey to Hong Kong. With effect from 23 January 2017, Indian nationals, except those belonging to the exempted categories2, must apply for and successfully complete PAR online before they can visit Hong Kong visa-free. Subject to meeting normal immigration requirements, a successful registrant may, during the validity of PAR, make multiple visits to Hong Kong for a stay of up to 14 days for each visit on the strength of the Notification Slip for Pre-arrival Registration for Indian Nationals and the registered Indian passport. Indian visitors who failed to obtain PAR may apply to the Department for a visa to visit Hong Kong. Moreover, the Department will review the visa-free arrangements for individual countries as appropriate.
Screening Procedures
The Department has always strived to expedite screening by introducing various administrative measures within the existing legal framework with a view to streamlining procedures and enhancing efficiency. Such measures include the arrangement of advanced scheduling of screening interviews implemented since April 2016. Under the new arrangement, an interview will be immediately scheduled upon the Department’s referral of the claimant to the DLS after serving a claim form. This enables screening interviews to be conducted within three weeks after the submission of a completed claim form. The average processing time for each claim has been reduced from 25 weeks to around 15 weeks. Through the simplified procedures and different administrative measures, the Department determined 3,218 claims in 2016, representing a significant increase of 38 per cent over the 2,339 determined claims in 2015.
Also, in order to support the work of the comprehensive review and expedite the screening process, the creation of 83 new posts (including 81 frontline staff) in the Department was approved in the 2016-17 financial year. Through the above enhancements, the Department assesses that its output can be further increased in 2017-18. As such, the government plans to implement a pilot scheme as soon as practicable to set up a supplementary roster to provide more claimants with the same level of publicly-funded legal assistance of the same quality in the screening process.
The Department will continue to explore enhancement measures with a view to further expediting the screening process. Moreover, the government is also studying amendments to the Immigration Ordinance in order to provide statutory underpinning to the USM procedures; to tighten the procedural timeframes and to prohibit delaying tactics.
To better support the screening process, the Department will continue to enhance its capability to collect information on countries of origin. The Department also provides interpretation service to claimants throughout the screening process. Currently, the Department has hired in-house translators and interpreters mainly to provide language support for claimants during briefing sessions and screening interviews, and to translate documents submitted by claimants. In 2016, the Department recruited three more interpreters to cater for the upsurge of claims. In addition, the Department will hire, on a case basis, part-time non-government interpreters from a pool of about 280 interpreters registered with the Judiciary where necessary.
Detention
The Immigration Ordinance empowers the Department to detain illegal immigrants and other relevant persons pending the determination of non-refoulement claims and/or during the removal process, though such power is subject to the common law Hardial Singh principle, which states that a person cannot continue to be detained if the screening of non-refoulement claims and removal procedures cannot be completed within a reasonable period of time. During the comprehensive review, the government will consider ways to better support the management of detention facilities taking into account legal, resources and public security implications.
Removal and Enforcement
The Department has been in close liaison with the local consulates and authorities of the countries concerned, endeavouring to remove all unsubstantiated non-refoulement claimants from Hong Kong as soon as possible. The Department has also stepped up enforcement against illegal employment and the employers.
Close Collaboration with Authorities in Other Jurisdictions
In addition, the Department is committed to strengthening contact with major source countries of claimants. Following the duty visit to India in December 2015, the Department also sent delegates to Vietnam, Pakistan and Bangladesh in 2016 to introduce to the local authorities Hong Kong’s stringent legislative provisions against illegal employment and human trafficking, and the objectives of the USM. Co-operation in intelligence gathering and liaison on enforcement were also discussed. The delegates also paid courtesy calls to the concerned Chinese diplomatic and consular missions overseas to discuss Hong Kong visit visa-related matters, and, through the local media, remind nationals of these countries not to be deceived by syndicates into believing that there is the possibility of staying in Hong Kong as a refugee, or attempt to take up illegal employment in Hong Kong. The Department will continue to send delegates to other major source countries to raise our concern over human smuggling and explain the situation regarding non-refoulement claims in Hong Kong. Liaison and exchange of intelligence with the law enforcement agencies in those countries will also be enhanced.
Litigation Support for Removal Assessment and Enforcement Litigation
A rejected claimant may lodge an appeal which will be considered by the Appeal Board, an independent statutory body. Claimants aggrieved by the decision of the Appeal Board may apply for judicial review.
The Removal Assessment (Litigation Support) Section is mainly responsible for handling appeals lodged with the Appeal Board against decisions on non-refoulement claims and the related judicial reviews.
The Enforcement Litigation Section, under the Removal Assessment and Litigation Division, handles civil litigation cases relating to removal and deportation, and damages claims relating to detention.