Foz and Others v. Director of Immigration

HCAL 769/2022

[2024] HKCFI 3504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 769 OF 2022

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J U D G M E N T

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A.  Introduction

1.‘Limbo’ – the ablative singular of the Latin word limbus – was a word originally used to describe a region supposed to exist on the border of hell, but is now more commonly used in English to describe any unfavourable place or condition, especially a condition of neglect or oblivion, or somewhere between and neither here nor there. The Applicants in this case say that they are stuck in limbo.

2.Though the Director of Immigration (“Director”) does not much like the word, and though the Applicants are very far from a place on the border of hell, I think they can fairly be described as being in limbo in the commonly used sense of the phrase. In short, this is because:

(1)  The Applicants (“A1”, “A2” etc) are members of one Coptic Christian family, being adult parents and four children (now aged 20, 16, 10 and 8).

(2)  The parents and the two older children arrived from Egypt in Hong Kong on 8 March 2011, and almost immediately applied to the United Nation’s High Commissioner for Refugees sub-office in Hong Kong (“UNHCR HK”) for asylum.

(3)  The two younger children were later born in Hong Kong.

(4)  The Applicants are illegal immigrants, meaning they have no permission to remain in Hong Kong – and (except A6) are all subject to Removal Orders (“ROs”).

(5)  However, they are persons who cannot return to their country of origin Egypt, without a risk of being subject to persecution or worse.

(6)  That risk has been accepted by the Director, when he found their non-refoulement claims (“NRC”) substantiated under the Unified Screening Mechanism (“USM”).

(7)  As a result, the Director has refrained from enforcing the ROs, and he will not remove the Applicants to Egypt (unless the previously established risk dissipates).

(8)  Further, the Director has not detained the Applicants pending their removal, and they have at all times been released on recognizance.

(9)  But, the UNHCR HK has declined to recognise the Applicants as refugees under its mandate, and will not assist with finding a durable solution by way of their resettlement in another country.

(10)  So, the Applicants say that they cannot return and will not be returned to Egypt, but they will apparently not be resettled elsewhere.

(11)  Yet, in the meantime – and for an unknown and apparently open-ended future period – they are in effect stuck in Hong Kong and remain subject to the conditions of recognizance imposed upon them.

(12)  Faced with that situation, the Applicants wish for permission to enter and remain in Hong Kong as residents.

3.Hence, this case touches upon the HKSAR Government’s immigration policies relating to substantiated NRC claimants.

4.By their Amended Form 86, the Applicants seek to challenge the Director’s decisions to refuse to rescind the extant ROs against them (“Decisions”). That is, the targets of the challenge are the ROs. The Decisions are said to have been communicated to the Applicants by letters from the Immigration Department (“ImmD”) dated 29 December 2021, 15 March 2022 and 29 May 2023. By way of relief, the Applicants seek to have the Decision is quashed, and an order directing the Director (a) to rescind the ROs, and (b) to consider and decide upon the Applicants’ request for permission to enter and remain in Hong Kong as residents.

5.I gave directions to bring the matter to a hearing. At the hearing, the Applicants were represented by Mr Peter Barnes of Counsel, and the Director was represented by Mr William Liu, Deputy Law Officer (Civil Law) and Mr Aaron Lam, Assistant Law Officer (Civil Law).

6.At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  Background Facts

7.Sufficient background to frame the contest in this case can be found in the following.

8.As already stated, the Applicants are an Egyptian Coptic Christian family.

9.Upon the arrival of A1 to A4, they were granted permission to remain for three months. But from 7 June 2011, they have overstayed. They surrendered to ImmD on that date, and were released on recognizance.

10.Prior to that, they had made their claim for asylum to the UNHCR HK.

11.A5 was born in Hong Kong on 18 February 2012, and A6 was born in Hong Kong on 7 April 2016.

12.ROs were made against A1 to A4 on 9 September 2011, under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”), on the basis that they had contravened conditions of stay, namely remaining in Hong Kong beyond their permitted limit of stay. An RO was made against A5 on 19 November 2012. Though no RO has yet been issued against A6, one is apparently under contemplation.

13.All Applicants lodged NRCs under the USM. The consideration of those claims essentially continued between mid-2014 and early 2017.

14.On 15 March 2017, the Director wrote by letter to confirm the Applicants’ NRC claims as substantiated on the grounds of (a) torture risk, (b) BOR 2 and BOR 3 risk, and (c) persecution risk. The letter pointed out, in those circumstances, that the Applicants would not be returned to Egypt for the time being; that the making of a removal order or deportation order against them would not be precluded despite the substantiated NRCs; that ImmD may consider whether there is any specified country other than Egypt to which the Applicants may return; that if any such country is identified, the Applicants may be removed there; and that the NRCs may be reviewed should there be any change of circumstances and other reasons for considering revocation.

15.On 13 July 2017, the Applicants’ case was referred by the Director to the UNHCR HK for consideration of refugee status under its mandate.

16.Despite the Director’s various letters, it was only on 10 November 2021 that the UNHCR HK confirmed that, after careful review of the available information as well as its own independent investigation, all of the Applicants were not qualified for resettlement under its mandate, and that no Refugee Certificates would be made available to them.

17.On 7 March 2022, UNHCR HK confirmed to an NGO acting on behalf of the Applicants – namely the Hong Kong Dignity Institute (“HKDI”) – that the situation is not likely to change, and that there is therefore no foreseeable likelihood of a departure by resettlement.

18.In the meantime, A1 and A2 have been given permission to take up employment in Hong Kong (and so are earning), while A3 to A6 have been attending public or private schools in Hong Kong. The family has also been receiving humanitarian assistance, and would be entitled to apply for waiver of medical fees at public hospitals and clinics. It is fair to say that, with these permissions and assistance, the family is far from destitute.

19.However, though I need not go into detail for present purposes, the Applicants say that their status in limbo has a materially deleterious impact on their mental health, and has adversely impacted their day-to-day functioning (including as to advancement in employment and education). They also say that the lack of resident status has a number of other implications, including access to Government facilities, or the ability to access public post-secondary education. This has been detailed in the evidence.

20.Further, none of the Applicants can travel without ceding their status as persons in respect of whom Hong Kong is prepared (for the moment and subject to regular review) to withhold forced removal back to Egypt. That is because a departure from Hong Kong will be considered as a withdrawal of the NRCs, even substantiated claims, which would also prohibit renewal of such a claim: see section 37ZF of the Ordinance.

21.At various points, HKDI and the Applicants’ solicitors have written to the Director seeking rescission of the ROs. Though there has been a request in that context for the Director to exercise his discretion to grant formal permission to the Applicants to land in the HKSAR, the focus has been on the ROs.

22.The Applicants say that the replies from the Director (the targets of challenge) amount to – or will be taken as amounting to – either (a) a refusal to rescind the ROs, or (b) a refusal to make a determination to rescind the ROs.

C.  NRC Claim Mechanism and Relevant Policies

23.The USM has been developed with its procedures based on the statutory framework of handling torture claims to assess a NRC on all applicable grounds, including torture risk, persecution risk with reference to the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol (together, “Refugee Convention”), BOR 2 risk and BOR 3 risk.

24.Upon the commencement of the USM on 3 March 2014, UNHCR HK ceased all asylum screening. But claimants whose claims for persecution risk are substantiated are referred to UNHCR HK for consideration of durable solutions, including resettlement in a third country, under its mandate. Where UNHCR HK concludes that a substantiated persecution claimant does not meet its criteria for any durable solutions, including resettlement in a third country, ImmD would be informed of the rejection. But the matter remains as between the claimant and the UNHCR HK for consideration of durable solutions.

25.Some of the features of the HKSAR Government’s handling of claimants whose NRCs are substantiated were considered in GA v Director of Immigration (2014) 17 HKCFAR 60 at §§2-4. As supplemented by the materials provided with Mr Liu’s submissions, the following salient features can be identified:

(1)  Persons who make NRCs are illegal immigrants, over stayers or persons with no permission to remain in Hong Kong.

(2)  Therefore, the Director has the power to require them to be removed from Hong Kong by issuing ROs pursuant to section 19(1)(b) of the Ordinance.

(3)  The issue of an RO and its execution are two separate matters, and the making of an NRC does not affect the validity of an extant RO: see section 37Z(2)(a) of the Ordinance.

(4)  When a claimant has his NRC substantiated, he would not be removed for the time being to the risk state, notwithstanding any extant RO: see section 37Z(1) of the Ordinance.

(5)  However, the person may be removed to other places (as arranged by the UNHCR HK under its mandate, or by the person’s own initiatives) or to the previously claimed risk state when the claimed risk no longer exists.

(6)  For claimants whose NRCs are substantiated, but whose refugee status is not recognised by the UNHCR HK, ImmD would conduct regular reviews to assess if they may be removed back to the claimed risk state when the circumstances so warrant, or potentially to other countries for resettlement on the claimants’ own initiatives.

(7)  As a result, there is only a temporary withholding of the exercise of the Director’s powers of removal.

(8)  The HKSAR Government’s practice not to expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture stems from Article 3(1) of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

(9)  But the CAT does not impose any obligation on the HKSAR Government (a) to grant permission to a substantiated torture claimant to enter and remain as a resident in Hong Kong, or (b) not to remove the torture claimant indefinitely.

(10)  The Refugee Convention has never been applied to Hong Kong.

(11)  Hong Kong is therefore not under any international obligation to grant asylum to refugees, arrange their settlement or admit them as residents by offering them legal immigration status.

26.There is a long-standing policy of not granting asylum to any NRC claimants, or determining any person’s refugee status. The illegal immigrant status of these claimants will not change, regardless of the result of their NRC. There is also the policy of not admitting any claimants whose NRCs are substantiated as residents in Hong Kong, which has been codified into section 37ZY of the Ordinance.

27.For persons who do not have the right of abode and the right to land in Hong Kong, but who wish to apply for the grant of permission to stay or remain in Hong Kong – including NRC claimants (whether substantiated or not) – there are various specific immigration policies to be given effect by the Director to deal with different categories of persons. Under these policies, they allow persons in different categories to come to Hong Kong for immigration purposes including working, studying, establishing or joining in any business, taking up residence as residents or remaining as visitors.

28.These policies and permissions are given effect against the well-known background of the strict overall immigration policy imposed by the HKSAR Government. This has been traversed in many cases including BI v Director of Immigration [2016] 2 HKLRD 520 at §92, which (in summary) identifies that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

(2)  The administration of those policies and practices is in the hands of the Director, who has been given a very wide discretion to discharge the heavy responsibility.

(3)  The Court is not equipped with the necessary information or tasked by the law to carry out the responsibility of the Director.

(4)  Nevertheless, the Court retains a supervisory jurisdiction over the Director’s exercise of the power of immigration control.

(5)  If the Director fails to take relevant considerations that are legally required to be taken into account, or takes into account irrelevant considerations which he legally should not take into account, the decision would not be valid.

(6)  The Court can also intervene where the Director does not act fairly in the decision-making process.

(7)  The Court may also intervene where the decision is found to be Wednesbury unreasonable or irrational.

(8)  An important consideration in the application of the principle of legality in the Hong Kong immigration context is the reservation in section 11 of the Hong Kong Bill of Rights Ordinance Cap 383, providing that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

29.It is also trite, and no authority is needed for the proposition, that decisions are to be made by the decision-maker to whom the legislature has entrusted that function, including any relevant fact finding function. It is the duty of the Court to leave decisions of fact to the decision-maker, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

30.Further, where an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian or compassionate considerations. However, the Director is not obliged to take humanitarian and compassionate considerations into account. If he does not do so, there is no basis for the courts to intervene, since in judicial review the courts are concerned only with considerations which the Director is legally bound to consider. However, if the Director does consider those factors, subject to any challenge based on procedural unfairness, the courts would not likely interfere with his decision on the ground of Wednesbury unreasonableness, because the court must have regard to the Director’s wide discretion and the context of whether the applicant merits exceptional treatment against a stringent overall immigration policy.

31.On a factual point, it can be noted that, by the time of the evidence filed in these proceedings, ImmD had conducted regular reviews of the Applicants’ substantiated NRCs on 11 May 2018, 15 July 2019, 29 July 2020, 30 July 2021, 17 November 2022, and 28 November 2023. On each review, it was considered that the substantiated NRCs should not be revoked.

D.  Grounds of Review

32.Before turning to the individual grounds of review, it is helpful to deal with a point where a misconception or misunderstanding has arisen between the Applicants on the one hand and the Director on the other. As a result of some of the things stated in correspondence, the Applicants drew the inference that the Director’s position was that the ROs operated as an impediment to any consideration of an application to enter and remain in Hong Kong as residents.

33.I do not need to resolve whether that inference was or was not properly drawn, because it has now been made absolutely clear that the Director does not adopt that position. In short, it is said that (1) the issuance of an RO is based on a person’s immigration status and pursuant to section 19 of the Ordinance, and (2) the making of an NRC and the substantiation of it does not affect the validity of the RO, pursuant to section 37Z(2)(a) of the Ordinance.

34.Therefore, as was confirmed by Mr Liu, the ROs – though remaining extant – would still permit either (1) an application to the Director for the Applicants to be given permission to reside in Hong Kong, purely on compassionate and humanitarian grounds, or (2) an application to the Director for any of the ordinarily available visas for which the Applicant might consider themselves eligible.

35.As a result of the misunderstanding – justified or not – the clarification and confirmation of the Director’s actual position does tend to support Mr Liu’s submission that there is no real utility in seeking to have the ROs rescinded (see further, below).

36.In any event, the Applicants advance two grounds of review:

(1)  Ground 1: Illegality.

(2)  Ground 2: Unlawful Fettering of Discretion.

37.I can deal with each of them in turn.

E.  Ground 1: Illegality

38.It is first convenient to set out some of the provisions of the Ordinance, which fall for consideration on the arguments as put forward under this Ground.

39.The ROs were made against each of A1 to A4 pursuant to the exercise of powers under section 19(1)(b)(ii), as it appeared to the Director that the Applicants were contravening or had contravened a condition of stay. Later, the RO was made against A5 pursuant to the exercise of powers under section 19(1)(b)(iii).

40.Section 32(3A) of the Ordinance provides that a person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director (and certain other officers), pending his removal from Hong Kong.

41.Section 36 of the Ordinance provides for recognizance as an alternative to detention, and it empowers an immigration officer and any police officer to require a person who is detained or liable to be detained under (amongst other sections) section 32 to enter into a recognizance in the prescribed form in such amount, with such number of sureties and subject to such conditions as the officer may reasonably require or impose.

42.There can be no doubt, and indeed there is no challenge in these proceedings seeking to raise any doubt, about the lawfulness of the original making of the ROs under section 19(1)(b) of the Ordinance. The legal basis of the ROs is clear, and I note that A1 to A5’s previous respective appeals against the ROs were dismissed.

43.Nevertheless, the present challenge is made against the factual background that the ROs made in respect of A1 to A4 were made 13 years ago, and in respect of A5 12 years ago. Because the Applicants are not detained pending removal, they are required to report regularly to the Director (on Wednesdays every 10 weeks), and they have been subject to the conditions of recognizance for over 13 years (A1 to A4) or essentially since birth (A5).

44.Hence, the thrust of the Applicants’ argument under Ground 1 is as follows:

(1)  The lawful exercise by the Director of his powers under section 36 of the Ordinance, including the imposition of conditions, is dependent on the lawfulness of the exercise of the power of detention, as it is an alternative to detention.

(2)  If detention would no longer be lawful, by reference to the well-known Hardial Singh principles, then it is no longer lawful for the Director to impose the conditions under section 36.

(3)  If the power of detention were exercised against the Applicants, the application of the Hardial Singh principles would lead to their immediate release, on the basis that it is not possible to identify a reasonable period within which when they might be removed.

(4)  Therefore, as a matter of fact in this case, where detention would not be lawful, then it should no longer be lawful for the Director to impose conditions of recognizance as an alternative to that unlawful detention.

(5)  Without any reasonable prospect of executing the Applicants’ removal, the ROs themselves should be rescinded, and should have been rescinded by the Director at the latest when requested by the Applicants for him to do so.

45.Mr Barnes also referred to the House of Lords decision in R (Khadir) v Home Secretary [2006] 1 AC 207. That case concerned the application of the UK Immigration Act 1971, which authorised the detention pending removal of persons refused leave to enter the UK or remaining unlawfully within it. Schedule 2 to the Act enabled the Secretary of State to authorise a person suspected of having entered the UK unlawfully to be “temporarily admitted” to the UK as an alternative to their detention pending removal, without prejudice to a later exercise of the power to detain, and that in the event of such temporary admission, the person would be subject to such restrictions as could be imposed by an immigration officer by notice given to him.

46.Whether Mr Khadir could be “temporarily admitted”, and placed under the restrictive conditions turned on whether he was “a person liable to detention” under paragraph 16 of the Schedule. It was argued that he could not lawfully be detained because of the practical difficulties in making arrangements for his removal from the UK, and that he was therefore not “liable to detention”.

47.Mr Barnes referred to §30, where Lord Brown of Eaton-under-Heywood set out the reasoning of Mance LJ (as he then was) in the Court of Appeal in the same case. I do not think I need to set out that reasoning, as the principles set by the House of Lords decision are apparent from the subsequent §§31-34, where Lord Brown stated (italics in original):

31  For my part I have no doubt that Mance LJ was right to recognise a distinction between the circumstances in which a person is potentially liable to detention (and can properly be temporarily admitted) and the circumstances in which the power to detain can in any particular case properly be exercised. It surely goes without saying that the longer the delay in effecting someone’s removal the more difficult will it be to justify his continued detention meanwhile. But that is by no means to say that he does not remain “liable to detention”. What I cannot see is how the fact that someone has been temporarily admitted rather than detained can be said to lengthen the period properly to be regarded as “pending … his removal”.

32  The true position in my judgment is this. “Pending” in paragraph 16 means no more than “until”. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be “pending”, still less that it must be “impending”. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains “liable to detention” and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21.

33  To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about its existence. True it is that in Tam Le Lam [1997] AC 97 the Privy Council concluded that the power itself had ceased to exist. But that was because there was simply no possibility of the Vietnamese Government accepting the applicants’ repatriations; it was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be “pending removal”. …

34  None of this, of course, is to say that the regime governing temporary admission as presently administered is other than harsh. But that harshness has been sanctioned by Parliament and cannot affect the true construction and application of paragraph 16(2) and 21 of Schedule 2. Its only possible relevance would be to the exercise of the Secretary of State’s undoubted discretion, irrespective of the legal position under Schedule 2, at any time to grant [exceptional leave to enter].

48.I think these passages – and the principles they reveal – are against the Applicants’ argument, and perhaps show the argument has been taken ‘upside down’. Mr Barnes in effect argues from the point that release on recognizance (with conditions attached) is an alternative to detention pending removal, in the hope of reaching the point that the power to remove must have lapsed, so that the ROs should be rescinded.

49.However, it seems to me that the analysis the ‘right way up’ runs as follows:

(1)  The Applicants are illegal immigrants.

(2)  They are, therefore, subject to the exercise of the power granted under section 19(1)(b) of the Ordinance and the making of ROs against them lawfully in accordance with that power.

(3)  As subjects of ROs, the Applicants are liable to detention pending removal under section 32(2A) of the Ordinance.

(4)  If they are not detained – i.e. the power to detain them is not exercised – they can be granted the alternative release on recognizance under section 36 of the Ordinance.

(5)  The making and the substantiation of the NRCs have no effect on the immigration status of the Applicants.

50.I also agree that the Hardial Singh principles deal with the exercise of the power to detain (i.e. when it can properly be exercised and when it cannot), and not its existence. Hence, where (as here) there is no detention, those principles have no relevant application. Indeed, if the Applicants were taken into detention, and (typically upon the making of a habeas corpus application) ordered to be released from detention on the basis that the power of detention could no longer continue to be lawfully exercised, they would simply be released on recognizance.

51.An order or decision to release would not cause them to be released unconditionally, but trigger the power of release on recognizance. Further, ordering release would not affect the existence of the power to detain, but would be on the basis that the exercise of that power is precluded in the then pertaining circumstances. Those circumstances might change. That is, the Applicants would remain liable to detention pending (i.e. until) their removal.

52.I accept Mr Liu’s submission that, so long as the HKSAR Government remains intent upon removing the Applicants and it is not completely impossible – or, to put it in another way which seems to me to be synonymous, there is some prospect of achieving removal – the power to detain does not lapse.

53.Mr Liu submitted that it is highly doubtful that the Applicants are actually in any limbo status, let alone a perpetual one. Like other persons in a similar position, namely persons whose NRCs are substantiated but are not arranged for resettlement by the UNHCR HK, the Applicants are still subject to regular reviews by ImmD to see if they may be removed back to the claimed risk state, and they remain free to apply to other countries for resettlement on their own initiatives. The Director also understands that the Applicants have family members who have resettled in other countries, and there is some evidence that the Applicants have indeed tried to seek resettlement elsewhere (though, apparently, so far to no avail).

54.As I have also touched on above, I also accept that the existence of the ROs has nothing to do with the possibility of the grant of permission to enter and remain in Hong Kong. I therefore agree that targeting the ROs in this challenge is of no or little practical utility to the Applicants (though I understand the potential mental benefit as might flow from being released from that burden).

55.Ground 1 fails.

F.  Ground 2: Unlawful Fettering of Discretion

56.The Applicants say that either (a) the Director has rejected the Applicants’ application to enter and remain in Hong Kong as residents, applying a rigid and unwavering policy that persons in the position of the Applicants are not eligible to apply, or alternatively (b) the Director has refused to consider the Applicants’ application to enter and remain in Hong Kong as residents, again applying the same rigid and unwavering policy.

57.The challenge is based upon the settled principle that a public authority may set a general policy governing its approach, so long as its practice admits of exceptions and that it does not ‘shut its ears’ to claims that the grounds for an exception exist in any particular case. It is important that the policy adopted, whether general in character or confined to a class of persons, is not so rigid as to exclude the exercise of discretion by the decision-maker to consider the merits of the particular case and a willingness to depart from the policy, if need be, in the particular case. In other words, a decision-making body exercising public functions which is entrusted with discretion must not disable itself from exercising its discretion in individual cases, for that would be a fetter on the discretion.

58.However, it seems to me that, with respect, the short answer to this intended challenge flows from the failure of Ground 1. Once it is understood – or has been clarified and confirmed – that the existence of the ROs is no bar to the making of an application to enter and remain in Hong Kong as resident on any available basis, then the premise underlying the intended challenge falls away.

59.Hence, the Applicants can apply for permission to enter and remain in Hong Kong on any of the established bases for the grant of a visa, or – absent the ability to show eligibility for such a grant – on the basis that the discretionary consideration of humanitarian and compassionate grounds should lead to the exceptional grant of permission to enter and remain.

60.Another answer is that there is no unlawful fettering of a decision-maker’s discretion by his adherence to the established policies for the exercise of that discretion, in this case for granting permission to enter and remain in Hong Kong. Indeed, where there is an established policy governing matters, the law requires the decision-maker not to depart from that policy absent good reasons for doing so.

61.Further, a consideration of exceptionality is still a consideration of merits. It involves a consideration of whether the merits of the application (in this case, potentially having regard to the compassionate or humanitarian considerations put forward) are sufficiently strong to warrant exceptional treatment in view of the general importance of maintaining stringent immigration controls.

62.Here, it is common ground – as well as settled law (see above) – that the Director is under no obligation to consider humanitarian and compassionate circumstances, but has the discretion to do so. If he chooses to do so, the weight given to those circumstances is a matter for the Director to balance, subject only to the supervision by the Court exercising ordinary judicial review principles.

63.I do not think that, when the Director pointed these matters out in correspondence, he was somehow suggesting that the Applicants were not eligible even to apply for any form of visa or discretionary exceptional permission to enter and remain in Hong Kong on humanitarian and compassionate grounds. I note that in argument, Mr Barnes suggested that the Applicants would not be eligible for any of the ordinary forms of visa, so would be limited to making an application for an exception on humanitarian and compassionate grounds. But, on the correspondence so far exchanged between the parties – which, like the challenge in these proceedings, appears to have focused on the ROs – I am not sure a formal application on that basis has actually been advanced. Even if it has, the circumstances might change over time, and another application might be made.

64.From what has been said in these proceedings, it seems to me that if a formal application is made then the Director will deal with it in accordance with the law and matters which I have described above, which would be lawful, subject only to review on traditional judicial review grounds. That is not a fetter on his discretion.

65.On any such application, the matters canvassed in some detail in the Applicants’ evidence to explain their individual personal predicaments and concerns – which of course engender some sympathy – can be put to the Director.

66.Ground 2 fails.

G.  Result

67.In the circumstances, the application for judicial review is dismissed.

68.Mr Barnes, and those instructing him, have acted for the Applicants with the benefit of a Legal Aid Certificate. That the Applicants are legally aided is no bar to a costs order being made against them, even if the other party is a government department. In this case, I see no reason why costs should not follow the event. Therefore, I order the Director’s costs to be paid by the Applicants, to be taxed if not agreed. The Applicants’ own costs shall also be taxed in accordance with the applicable legal aid regulations.

H.  Postscripts

69.At one point during argument, and although I may have misunderstood the submission, it seemed that Mr Liu might have been suggesting that the Director takes the view that if an applicant is not “destitute”, then that applicant cannot even seek permission to remain in Hong Kong as a resident under humanitarian and compassionate considerations. It therefore seems to be necessary and appropriate for me to state that:

(1)  It is open to the Director to decide whether to take into account humanitarian and compassionate factors.

(2)  But if he does, the fact that a person is not destitute would only be a factor to take into account.

(3)  In other words, that fact can be taken into the weighing of the humanitarian and compassionate grounds against other relevant factors to be weighed.

(4)  But that fact would not of itself be determinative.

(5)  Nor would it be bar to even entering into such considerations.

70.Lastly, Mr Liu made the point that when the Applicants arrived in Hong Kong and made their NRCs, they could not have had any expectation that they would be permitted to remain and reside in Hong Kong. That may be right, but I would also think that they could not have had any expectation that they would find themselves 13 years later in the position that they have substantiated NRCs, meaning that they will not be removed back to Egypt, but they have not been accepted under the UNHCR HK’s mandate for assistance in finding a durable solution, namely resettlement in a third country, finding themselves in limbo. Though no details have been provided, there are apparently 24 others in a similar situation.

71.I am conscious of the experience in Hong Kong that any sign (however tenuous) of potential relaxation in the HKSAR Government’s attitude towards illegal immigrants could mislead would-be migrants into believing that they may seek to enter and remain in Hong Kong, with the concomitant risk of a mass influx of illegal immigrants as might jeopardise public safety and social stability. On the other hand, the Applicants have shown themselves to be working and studying in a manner similar to an ordinary Hong Kong resident family, and it might be thought that there might come some future time when it would be recognised that there is the practical inability for their removal either back to their country of origin or to a third country. If humanitarian and compassionate factors are taken into account, the balance of weight may shift.

Mr Peter Barnes, instructed by Patricia Ho & Associates, for the applicants

Mr William Liu, Deputy Law Officer (Civil Law) and Mr Aaron Lam, Assistant Law Officer (Civil Law), of the Department of Justice, for the respondent