Read the full judgment text of FACV Nos 9 and 10 of 2018 on BabelCite. This Court of Final Appeal judgment was delivered on 4 April 2019 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Stock NPJ and Mr Justice French NPJ.
Civil law – immigration – right of abode – foreign national mother – Hong Kong permanent resident (HKPR) and Hong Kong resident (HKR) minor children – application for extension of stay to remain in Hong Kong to take care of children – refusal by Director of Immigration – constitutional, statutory and common law rights asserted under Basic Law (BL 24, 37, 41), International Covenant on Civil and Political Rights (ICCPR) Articles 17, 23, 24 (as enacted in Bill of Rights (BOR) Articles 14, 19, 20), International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 10, Convention on the Rights of the Child (CRC) Article 3, and common law best interests of the child – Hong Kong Bill of Rights Ordinance (Cap 383) section 11 immigration reservation – constitutional status under Basic Law Article 39 – Appeal Committee Questions of general or public importance – whether Director of Immigration obliged to take into account parent-and-child family's enjoyment of fundamental rights – whether section 11 of HKBORO exempts immigration authorities from taking into account Basic Law rights of child family member – section 11 operates at constitutional level to exclude reliance on BOR rights by persons not having right to enter or remain in respect of immigration legislation governing entry into, stay in and departure from Hong Kong – Rbani extended so exception applies by necessary implication to cognate Basic Law rights requiring coherent scheme of constitutional rights – HKBORO s.2(5) does not insulate Basic Law rights from section 11 – BL 24 right of abode does not enable permanent resident to require Director to permit another person to enter Hong Kong – In re Hai Ho Tak confirmed and not overruled – Gurung Kesh Bahadur distinguishable as it concerned non-permanent resident with unexpired limit of stay – ICESCR 10 and CRC 3 are unincorporated treaties not self-executing under common law dualist principle – CRC reservation applies – common law best interests of child principle has no application in immigration context – Appeals dismissed unanimously – costs to be dealt with on written submissions within 14 days.
Legal issues: Whether the Director of Immigration is obliged to take into account parent-and-child family's enjoyment of fundamental rights · Whether section 11 of HKBORO exempts immigration authorities from taking into account Basic Law rights of a child family member · Whether HKBORO section 2(5) insulates Basic Law rights from section 11 · Whether the In re Hai Ho Tak decision should be overruled · Whether ICESCR Article 10 and CRC Article 3 confer enforceable rights · Whether the common law best interests of the child principle applies in immigration context
Outcome: Appeals unanimously dismissed.
Cited by 71 cases · Cites 5 cases