Immigration judgements by Hong Kong's Court of Final Appeal yesterday reinforced the SAR's autonomy after the Beijing reinterpretation of one of its rulings in 1999 had raised worries that its decisions were subject to the whim of mainland administrators.
In 1999 the Hong Kong Government had referred an immigration ruling to Beijing when it lost in the Court of Final Appeal and succeeded in obtaining a reversal - but yesterday the Government said it would accept the Court's decisions even though it lost one of them.
The case it lost involved a three-year-old Chinese boy who was born in Hong Kong while his mainland Chinese parents were there on a visit; the Court's five judges ruled unanimously. ruled that Chong Fung-yuen, born while his parents were in the SAR on two-way permits, was entitled to stay under Article 24(2)(1) of the Basic Law. "It does not concern affairs which are the responsibility of the [Chinese] government or the relationship between the central authorities and [Hong Kong]," the court said. "When the language of Article 24(2)(1) is considered in the light of its context and purpose, its clear meaning is that Chinese citizens born in Hong Kong before or after July 1, 1997, have the status of permanent residents," the Chief Justice said. "The meaning of the provision is not ambiguous, that is, it is not reasonably capable of sustaining competing alternative interpretations."
The Chong Fung-yuen decision meant 2,202 children born in the SAR to mainland mothers after 1997 were entitled to the right of abode, the Government said last night.
Deputy Secretary for Security Timothy Tong Hin-ming said the administration was disappointed with the decision but would respect it. However, he declined to give a categorical undertaking that the Government would not seek a reinterpretation by Beijing relating to the decision. Mr Tong said the Government would work with mainland security officials to guard against an influx of pregnant women after the ruling.
Fung-yuen's grandfather, Chong Yiu-shing, said last night his family was "overjoyed" at the news.
However the Government won another case in which the Court denied the right of abode to mainland children adopted by Hong Kong couples. Mr Justice Bokhary found against the Government, but the other four judges found that the phrase "born of" referred to a biological parent-child relationship.
Lawyers for the Director of Immigration argued the court was duty-bound to seek, when necessary, reinterpretation of Article 24 from the Standing Committee of the National People's Congress. But the top court ruled the focus should be placed on the character of the article, rather than the facts of individual cases. The court said the issues in the Fung-yuen and adopted children's cases did not require Beijing's reinterpretation as the relevant provisions neither concerned the central Government's affairs nor affected the relationship between the SAR and the mainland.
Audrey Eu, an independent legislator and barrister, said the judgments rejected the government's wide definition of situations in which cases could be referred to Beijing and had sought to ensure the interpretation of 1999 was not applied too broadly to subsequent cases. "The court has done a significant damage limitation exercise [in the context of the 1999 referral]," Ms Eu said.
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