The Registrar of Births and Deaths v. Syed Haider Yahya Hussain and Another

FACV No. 6 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 of 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 77 OF 2000)

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Dates of Hearing: 19 and 20 November 2001

Date of Judgment: 10 December 2001

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J U D G M E N T

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Chief Justice Li :

1.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2.For the reasons given in the judgment of Mr Justice Chan PJ, I would allow the appeal as he proposes and make the orders as to costs which he proposes.

Mr Justice Chan PJ:

Introduction

3.The respondents in this appeal ("the applicants") were born in Hong Kong of Pakistani nationals on 8 March 1984 and 13 March 1985 respectively. In their respective birth certificates, it is stated that their status as Hong Kong belonger was "not established". They allege that they were in fact Hong Kong belongers at the time of their births. On 4 March 1999, they applied to the appellant, the Registrar of Births and Deaths (the "Registrar"), to correct this error in the Register of Births and their birth certificates. On 20 April 1999, the Registrar refused their application, taking the view that there was no error of fact or substance and that he was therefore not empowered to make such correction under s.27(1)(c) of the Births and Deaths Registration Ordinance, Cap. 174.

4.The applicants applied by way of judicial review to challenge this decision seeking a mandamus directing the Registrar to make the correction and also a number of declarations of their status under the relevant immigration legislation. Chung J refused the application. The Court of Appeal (Rogers V-P and Leong JA, Keith JA dissenting) allowed the applicants' appeal and granted the relief sought. With leave, the Registrar appeals to this Court.

5.This appeal does not concern the right of abode in Hong Kong of the applicants. Nor that of their father, Mr Syed Pervez HUSSAIN ("the father"). The father was granted unlimited stay in Hong Kong on 29 January 1988 and issued a Hong Kong permanent identity card entitling him to have the right of abode in Hong Kong in February 1999. As a consequence of this, the applicants are entitled, before they reach the age of 21, to apply for the status of permanent resident with the right of abode in Hong Kong under art. 24(2)(5) of the Basic Law which is reflected in para. 2(e) of Schedule 1 to the Immigration Ordinance, Cap. 115. Although the applicants' main contention is that they had acquired the status of Hong Kong belonger at the time of their births, a decision in their favour would in effect enable them to acquire the status of British Dependent Territories citizen which entitles them to obtain a British National (Overseas) passport.

Central issues in this appeal

6.At the centre of this appeal is the question whether the father was lawfully subject to immigration control at the time of their respective births (or, as can be seen below, as early as 1969 when he was granted a Multiple Re-entry (Class A) visa or on 19 June 1971 when he returned from Pakistan and sought to enter Hong Kong). This is because "Hong Kong belonger", the status which the applicants are claiming to have, was defined in the Immigration Ordinance 1971 as amended by the Immigration (Amendment) (No. 2) Ordinance 1982 as a result of the passing of the British Nationality Act 1981 in the United Kingdom (which commenced on 1 January 1983), in these terms:

" 'Hong Kong belonger' means a person who -

(a) immediately before 1 January 1983 was -

(i) a British subject who was born in Hong Kong;

(ii) a British subject by naturalisation in Hong Kong;

(iii) a British subject by registration in Hong Kong under section 7(2) of the British Nationality Act 1948;

(iv) a British subject married or who had been married to, or was a child of, a person mentioned in sub-paragraph (i), (ii) or (iii);

(b) on or after 1 January 1983 belongs to a class or description of persons mentioned in the First Schedule."

7.Since the applicants were born after 1983, only the definition in (b) is relevant. In paragraph 2 of the First Schedule, persons who are Hong Kong belongers include :

"Any person who is or becomes a British Dependent Territories citizen -

(a) under section 15(1)(b) or (2) of the 1981 Act."

8.Section 15(1) of the 1981 Act provides that :

"A person born in a dependent territory after commencement shall be a British Dependent Territories citizen if at the time of the birth his father or mother is -

(a) ...; or

(b) settled in a dependent territory."

9.Section 15(2) is not relevant to this appeal. Hence, the applicants have to show that the father was settled in Hong Kong at the time of their respective births. With regard to the meaning of "settled", s.50(2) of the 1981 Act provides that :

"Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain."

10.Thus, if the father was, on the applicants' respective dates of birth, subject to any restriction on the period for which he might remain in Hong Kong, he was not settled in Hong Kong and they were not British Dependent Territories citizens and hence not Hong Kong belongers. If, on the other hand, he was not subject to such restriction, they were both British Dependent Territories citizens as well as Hong Kong belongers with the result that the Register of Births and their birth certificates contain an error which must be corrected.

11.It is not disputed that as a matter of fact, there was a limit of stay endorsed on the father's passport at the relevant times. The question is whether he could lawfully be subject to such restriction. This involves an examination of the father's position since he came to Hong Kong and the relevant law which applied to him during this period. The facts are not in dispute.

The relevant facts

12.The father was born in Pakistan of Pakistani parents on 10 March 1948, thus acquiring the status of a British subject by birth under the British Nationality Act 1948. He came to Hong Kong with his family in 1951 at the age of 3, travelling on his mother's Pakistani passport. He remained ordinarily resident in Hong Kong continuously for more than 7 years until 1958. Since then, although he had travelled in and out of Hong Kong on a number of occasions, he had not been ordinarily resident in any other place continuously for 7 years or more.

13.Until 1971, on each occasion when the father returned to Hong Kong after going abroad, he was allowed to land without any limit of stay.

14.As a result of the enactment of the Immigration (Control and Offences) (Amendment) Ordinance 1969, all British subjects were treated in the same way as aliens in that they had to obtain a visa for entry into Hong Kong.

15.In September 1969, when the father wanted to leave Hong Kong for Pakistan to further his education there, he had to and did obtain a Multiple Re-entry (Class A) visa which was valid for one year from 10 September 1969.

16.He did not return within that year. On 19 June 1971, after he had completed his education in Pakistan having obtained a Master's degree, he returned to Hong Kong but the re-entry visa had already expired. When he entered, his passport was endorsed with the conditions limiting his stay in Hong Kong for three months and prohibiting him from obtaining employment, establishing a new business or entering school as a student.

17.On 21 July 1971, as a result of his protest, these conditions were varied to permit him to be re-admitted to Hong Kong for such purpose as might in writing be approved by the Director of Immigration until 10 October 1975 which was one month before the expiry of his then passport. He was not required to have a re-entry visa if he left Hong Kong and re-entered within 12 months of the date of his last departure. At no time did the father take any action to challenge the imposition of such conditions. Subsequently, he had travelled in and out of Hong Kong on many occasions. Each time when he returned to Hong Kong, similar conditions were imposed and endorsed on his passport. The last conditions which were imposed were to expire in 1988.

18.On 1 September 1973, the father ceased to be a British subject upon the coming into force of the Pakistan Act 1973 enacted by the United Kingdom Government which extinguished the status of British subject for all citizens of Pakistan upon Pakistan leaving the British Commonwealth.

19.While the conditions of stay were still subsisting, the applicants were born in Hong Kong on 8 March 1984 and 13 March 1985.

20.On 29 January 1988, the father was granted unconditional stay in Hong Kong. He has since been ordinarily residing in Hong Kong continuously for more than seven years. On 2 February 1999, he was issued a Hong Kong permanent identity card.

The basis of the applicants' case

21.It is accepted that when the father came to Hong Kong in 1951, he was subject to immigration control. It is however also accepted that until 1971, no condition limiting his stay in Hong Kong had been imposed. The applicants' case is based on the effect of the Deportation (British Subjects) Ordinance 1936 ("the 1936 Ordinance").

22.Mr McCoy SC, leading Mr S H Kwok for the applicants, submits that by virtue of the 1936 Ordinance, the father, who was then a British subject, was deemed to belong to Hong Kong and had acquired a right not to be deported after he had been ordinarily resident in Hong Kong continuously for a period of seven years. He had acquired that right since at least 1958, and was entitled to such right so long as he had not been ordinarily resident in any other part of Her Majesty's dominions or any territory under Her Majesty's protection continuously for a period of seven years or more. With such a right, it is submitted, he was entitled to re-enter Hong Kong as of right and to remain here without being subject to any immigration restriction. For if this were otherwise, the right not to be deported would be meaningless. This was, counsel argues, an accrued right which survived the repeal of the 1936 Ordinance by the Immigration Ordinance 1971 ("the 1971 Ordinance"). It required an express statutory provision to abrogate such accrued right. There was no such provision. His right not to be subject to any immigration restriction therefore, it is said, continued to the respective dates when the applicants were born.

The Registrar's response

23.Mr Beloff QC, leading Mr Marshall SC and Mr T Y Lee, for the Registrar argues that the 1936 Ordinance conferred on the father only an immunity not to be deported and could not give rise to an immunity from immigration control. The fact that the father had not, in practice, been subject to any immigration restriction before does not mean that he was not and would not be subject to such control. From September 1969 until January 1988, the immigration authority had in fact exercised immigration control over the father and there was a sound legal basis for imposing such restrictions on him. Hence, on the respective dates when the applicants were born, the father was and could lawfully be subject to these restrictions. As a result, he was not settled in Hong Kong at the relevant times within the meaning of s.15(1)(b) of the British Nationality Act 1981.

24.Thus Mr Beloff QC raises two points for consideration by this Court:

(1) whether the father's status as a person who could not be deported under the 1936 Ordinance meant that in law after acquiring such status, he was free of immigration control in Hong Kong and had in effect a right to land; and

(2) whether such right was one which survived the express repeal by the 1971 Ordinance by reason of s.23(c) of the Interpretation and General Clauses Ordinance, Cap. 1 as an accrued right and which subsisted up to the time of the applicants' births.

Separate legislative regimes

25.Since the early days of Hong Kong until the enactment of the 1971 Ordinance, deportation and immigration control had always been governed by different statutes. Quite understandably so. They perform different functions and serve different purposes. There is perhaps one thing in common: they both tend to favour persons who were born in or have a substantial connection with Hong Kong. That, however, is probably the only similarity.

26.Deportation deals with persons who have come to Hong Kong but are no longer welcome to remain for various reasons. Immigration control is aimed at persons who do not have any substantial connection with Hong Kong seeking to enter or remain for various purposes such as sightseeing, business or employment. A deportation order is usually made for the sake of public safety or in the interest of peace and good order of Hong Kong and is targeted at, for instance, persons who have committed offences or have been sentenced to imprisonment in Hong Kong. Immigration control, on the other hand, is often guided by much wider policy considerations, such as population, social, economic and commercial factors. To say that a person who is exempted from deportation should also be free from immigration control is to confuse the two different regimes. The fact that the immigration authority also has the power to remove from Hong Kong those persons who have contravened immigration legislation or restrictions may have contributed to this confusion.

27.In the courts below, the parties referred extensively to the history of deportation and immigration control legislation in the early days of Hong Kong. I would resist the temptation of entering into this legislative maze. Suffice it to say that the dichotomy reinforces the view that they were indeed different regimes which were then governed by different statutes.

28.For the purpose of this appeal, it is only necessary to discuss those statutes which applied to the father at the relevant times. When the father first came in 1951, he was subject to the Immigrants Control Ordinance 1949 ("the 1949 Ordinance") in relation to immigration matters and the 1936 Ordinance in relation to deportation matters.

Immigration control applicable to the father in 1951

29.The object of the 1949 Ordinance was "to control the entry into, exit from and movement within the Colony of persons not born therein". Section 2(1)(d) defined "immigrant" as "any person other than a person born in the Colony and in possession of documentary proof of such birth". When he arrived in 1951, the father was clearly an immigrant within its meaning in that Ordinance and was therefore subject to immigration control.

30.The type of control to which the father was then subject was as follows. By virtue of s.4 of the 1949 Ordinance, no person might enter Hong Kong save ... (b) under and in accordance with a permit of the immigration officer. The immigration officer had the power to examine persons arriving in Hong Kong to ascertain whether or not he was subject to immigration control as an immigrant (s.9(1)). During such examination, if it was found that the person was an immigrant and fell within one of the categories set out in s.11(1), the immigration officer might prohibit such person from landing in Hong Kong. If he entered without the permission of the immigration officer, he committed an offence and might be liable to be arrested and put before a magistrate who might order his return to the place where he came from. See s.11(5).

31.A person needed a valid travel document which established his identity and nationality and in the case of a non-British subject, also a visa granted by a British consular officer. (See s.18 and s.20(d).) That was however only a necessary but not a sufficient condition for entry into Hong Kong. For s.19 provided :

"The possession of valid travel documents shall not be deemed to imply that the holder will be permitted to enter as of right, nor, if he is permitted to enter, that he will be permitted to remain; nor shall it serve as an excuse for disobedience of any order of removal, deportation, expulsion or banishment made under any enactment for the time being in force."

32.Furthermore, s.15 empowered the immigration officer to impose such conditions "either general or special in or upon the occasion of or subsequent to any permit granted to an immigrant to enter, whether for the purpose of residence, sojourn or transient visit or for transhipment at a port in the Colony and may at any time vary or add to these conditions as he thinks fit." It is clear that the immigration officer might impose conditions upon entry or subsequently at any time after entry. This section drew a distinction between the occasion of entry and subsequent thereto; it also empowered the officer to vary or add conditions at any time which must be a reference to the time of entry as well as any time thereafter. The wording in s.22 (which gave an immigration officer the discretion at all times to limit the stay of any immigrant entering Hong Kong) also confirms that such power existed. The Court of Appeal was, with respect, incorrect in holding that there was no power to impose conditions after a person had already entered Hong Kong. (See Rogers V-P at p.14 and Keith JA at p.41 of the judgment.) The 1949 Ordinance also provided that it was an offence for any person to contravene or fail to comply with any provision of the Ordinance or any condition imposed upon entry and he would be liable to be removed (s.33).

33.It is quite clear, therefore, that when the father arrived in Hong Kong in 1951, he was subject to these immigration controls under the 1949 Ordinance. He might be refused entry, or allowed to enter subject to conditions, or have conditions varied or added during his stay in Hong Kong.

34.The father's position did not change when the Immigration (Control and Offences) Ordinance 1958 was enacted to replace the 1949 Ordinance. The 1958 Ordinance was a consolidation ordinance. It retained generally all the powers and discretion which an immigration officer had under the 1949 Ordinance which were exercisable in relation to all immigrants including the father. (See for example, s.4, s.18, s.19, s.20, s.11, s.15, s.22 and s.39). It must be noted that s.15(2) of the 1958 Ordinance provided that the immigration officer's power to impose conditions under s.15(1) "shall not be taken to derogate from the law for the time being in force in relation to deportation and expulsion of persons from the Colony." This cannot, as counsel submits, be taken to confer any immunity from immigration control on persons who were not liable to deportation. It simply means that the immigration officer's power to admit a person subject to conditions under s.15(1) does not affect the power to make a deportation order against that person under the deportation law.

35.Nothing in the Immigration (Control and Offences) (Amendment) Ordinance 1961 altered the position in any respect which is relevant to this appeal.

36.This was the immigration control applicable to the father until the introduction of the policy change in 1969 and the enactment of the 1971 Ordinance. I shall return to them at a later stage.

37.Did the father, after having remained in Hong Kong continuously for more than 7 years, acquire any right or status under the 1936 Ordinance so as to render him completely free from such immigration control? Having regard to the scope and nature of this Ordinance, the answer, in my view, must be no.

What was the effect of the 1936 Ordinance?

38.The applicants contend that the 1936 Ordinance conferred on the father a right not to be deported from Hong Kong. The Registrar suggests that the Ordinance created an immunity from deportation from Hong Kong. The majority of the Court of Appeal seemed to accept that the father had acquired such a right (Rogers V-P at p.5 and p.14; Leong JA at p.26). Keith JA took a different view (at p.35). What then was the effect of this Ordinance?

39.The object of this Ordinance was "to regulate the Deportation of Undesirable British subjects". The operative provision was s.3 which provided :

"Subject to the provisions of this Ordinance, the Governor in Council may, if he thinks fit, make a deportation order in respect of an immigrant British subject who does not belong to the Colony and who is -

(a) a convicted person in respect of whom any court has recommended that a deportation order should be made in his case, either in addition to or in lieu of sentence; or

(b) an undesirable person; or

(c) a destitute person; or

(d) a prohibited immigrant."

40.The meanings of "immigrant British subject" and "who does not belong to the Colony", can be found in s.2(2) and (3). They provided as follows :-

"(2) For the purposes of this Ordinance, a person shall be deemed to belong to the Colony, if he or she is a British subject and -

(a) was born in the Colony; or

(b) has been ordinarily resident in the Colony continuously for a period of seven years or more and since the completion of such period of residence has not been ordinarily resident in any other part of His Majesty's dominions or any territory under His Majesty's protection continuously for a period of seven years or more; or

(c) ...

(d) ...

(e) ...

(3) For the purposes of this Ordinance, a person shall be deemed to be an immigrant British subject if at the date of the service upon him of a notice under section 5 of this Ordinance, or, in the case of a convicted person, the date upon which he is charged with the offence, he is a British subject and has been resident in the Colony since the date of his last arrival therein for less than ... (certain specified periods)"

41.In my view, this Ordinance did nothing more than confer upon the Governor in Council a power to make deportation orders against certain categories of British subjects who were staying in Hong Kong. Such power had hitherto not been given to the Governor in Council in respect of British subjects. However, this power could only be exercised upon three conditions being satisfied and they must be satisfied at the time when the Governor in Council sought to exercise such power :

1. That person was an immigrant British subject;

2. He did not belong to the Colony; and

3. He was a convicted person, undesirable person, destitute person or prohibited immigrant.

42.If the father, who was a British subject at that time, had been ordinarily resident in Hong Kong continuously for seven years and had not, since the completion of such period of residence, been ordinarily resident in any part of Her Majesty's dominions or protected territory, he did not fall within the ambit of s.3. In other words, the conditions which must be satisfied before the Governor in Council could make a deportation order against him simply did not exist. So long as the conditions were not satisfied, the power of the Governor in Council could not be invoked and the 1936 Ordinance did not apply to him. Further, there was never any occasion on which it was thought necessary or appropriate to apply s.3 to him.

43.In my view, the 1936 Ordinance did not create any right not to be deported. Nor did it confer any status. I would not like to regard it as creating an immunity from deportation either. The Ordinance was simply not applicable to the father so long as the conditions specified in s.3 were not satisfied in his case. It did not apply to him any more than other British subjects staying in Hong Kong who did not fall within the ambit of s.3. It is important to note that this Ordinance did not contain any provision relating to immigration matters or enabling the Governor in Council to deport any person for not complying with immigration legislation. It simply had nothing to do with the powers of an immigration officer to prohibit a person from entering Hong Kong or to impose any condition upon or subsequent to his entry.

44.Mr McCoy SC suggests that somehow by virtue of this Ordinance, the father became a person belonging to Hong Kong for all practical purposes. This cannot be accepted in the light of the words "for the purposes of this Ordinance" in s.2(2). It is argued that these words were only intended to provide a link between the definitions in s.2 and the conditions in s.3 and did not affect the father's claim generally as a person belonging to Hong Kong. As Mr Beloff QC submits, even without these words, it would have been quite clear that the definitions in s.2 relating to persons who were deemed to belong to Hong Kong and persons who were immigrant British subjects would be applicable to s.3. Hence, the words "for the purposes of this Ordinance", apart from providing an express link with s.3 which is not strictly necessary, were there for the purpose of making it abundantly clear that nothing could be read or implied into the words "deemed to belong to Hong Kong" or "immigrant British subject" so that any person who fell within these definitions could regard himself as a belonger of Hong Kong for any other purposes, let alone immigration purpose.

45.As there was no right or status conferred on the father by this Ordinance, there was no right or status which could give rise to a right to remain indefinitely in Hong Kong or a right to freely enter or leave Hong Kong. There was nothing in this Ordinance which might conceivably be regarded as creating any exemption from immigration control for the father. He was all along lawfully subject to immigration control since he came to Hong Kong. That he was not liable to be deported because the 1936 Ordinance did not apply to him cannot free him from the immigration control which was already applicable to him. The fact that for all these years, no condition had been imposed upon his entry whenever he returned to Hong Kong or subsequent to such entry during his period of stay in Hong Kong does not mean that he was forever free from any immigration control.

Exercise of immigration control over the father in 1969

46.In 1969, there was a change of policy in that British subjects were also required to have a visa for entry into Hong Kong. This was implemented by the enactment of the Immigration (Control and Offences) (Amendment) Ordinance 1969. When the father left for Pakistan to further his education, he was subject to this new policy. Since he was already an ordinary resident in Hong Kong, he was given "preferential" treatment in that he was granted a Multiple Re-entry (Class A) visa which enabled him to leave Hong Kong and to return without any restriction within a period of twelve months. That was a lawful exercise of immigration control on him. However, he did not take advantage of this. He returned to Hong Kong after the expiry of this twelve-month visa.

The Immigration Ordinance 1971

47.The 1971 Ordinance was enacted in October 1971 and took effect from 1 April 1972. It consolidated and amended the law relating to immigration and deportation. For the first time, provisions for both deportation as well as immigration control were contained in the same piece of legislation. But the regimes remained distinct. It also created for the first time the concept of Hong Kong belonger and defined an immigrant as a person who is not a Hong Kong belonger. As mentioned above, the father clearly did not fall within the definition of Hong Kong belonger. He was therefore subject to the immigration control as provided in this Ordinance.

48.Under this Ordinance, no person might land in Hong Kong without the permission of an immigration officer unless he had the right to land in Hong Kong (s.7). Only three categories of person had the right to land in Hong Kong and they were (a) Hong Kong belongers; (b) resident United Kingdom belongers; and (c) Chinese residents. The latter two categories were however subject to s.20(6) which empowered the Governor in Council to make a deportation order against such persons provided certain conditions were satisfied. If Mr McCoy SC is right in his submission that the father somehow has acquired a right to land without being subject to any immigration control, he would be in a better position than a United Kingdom resident and a Chinese resident and is in the same position as a Hong Kong belonger. He clearly is not.

49.If the father was subject to immigration control under the 1971 Ordinance, the immigration officer had the power to give or refuse permission to him to land or to impose a limit of stay or other conditions of stay (s.11).

50.It is therefore clear that when the father returned to Hong Kong in June 1971, the immigration officer in imposing the restrictions on the father's period of stay in Hong Kong was acting within his powers under the provisions of the 1971 Ordinance. Such restrictions could lawfully be imposed on the father. This remained the position on the respective dates of birth of the applicants. The father was and could lawfully be subject to a restriction limiting his period of stay in Hong Kong.

51.The conclusion is therefore inevitable: the father was not settled in Hong Kong at the relevant times. It follows that the applicants were not Hong Kong belongers at the time of their births. The Registrar was clearly right to refuse to correct the entry in question in the Register of Births and the relevant birth certificates.

52.This is sufficient to dispose of the present appeal. It is not necessary, notwithstanding the interesting arguments made by leading counsel for both the Registrar and the applicants, to decide on the point whether a right not to be deported from Hong Kong had survived the repeal by the 1971 Ordinance.

Two other matters

53.I should mention two matters arising from the judgment of the Court of Appeal which have caused some concern.

54.First, it was said that the father had a legitimate expectation that he would be allowed to return to and remain in Hong Kong without any imposition of conditions or restrictions (Rogers VP at p.14 and p.16 of the judgment). The fact of the matter is that this issue simply did not arise from the evidence in this case. There was no evidence of any representation or undertaking made by any immigration officer when the father left Hong Kong in 1969 or on any other occasion that he would not be subject to any immigration restriction when he returned and sought re-entry again. There was also no evidence of any representation or undertaking from the government that there would be no change of immigration policy. The fact that no condition had been imposed prior to 1971 could not have given rise to any expectation at all that the father would not be subject to immigration control or that the law would not change so as to affect him. This point was not taken in the courts below. Counsel for the applicants has quite properly indicated to this Court that he does not wish to put forth any submission in respect of this issue.

55.The second matter is that in the judgment of Leong JA (at p.30 to 32), he referred to certain debates in the Legislative Council in 1969 when the government announced a change of policy by requiring British subjects to obtain visas for entry into Hong Kong. In my view, it is clear that the present case does not fall within any of the exceptions stipulated in Pepper v Hart [1993] AC 593. While it is permissible to refer to such debates for the purpose of ascertaining the intention of the legislature in the case of an ambiguity in a statutory provision, there is no ambiguity in this case. It is impermissible to refer, as the learned judge did, to the debates in the Legislative Council as part of the evidence showing the government's change of policy with regard to the requirement of visas for British subjects. In any event, it would seem that the passages were quoted out of context and were misunderstood.

Conclusion

56.For the above reasons, I would allow the Registrar's appeal and set aside the orders granted by the Court of Appeal. I would also award the Registrar his costs against the applicants here and below. The applicants who are legally aided would have their own costs taxed in accordance with the legal aid regulations.

Mr Justice Litton NPJ:

57.I have had the advantage of reading in draft the judgments of Mr Justice Chan PJ and Lord Millett NPJ. I agree with those judgments. Since we are differing from a majority of the Court of Appeal I will add a few words of my own.

58.The Immigration Ordinance, No.55 of 1971, is a statute of general application. It was passed to consolidate and amend the law relating to immigration and deportation. Section 7(a) of that Ordinance says that a person may not land in Hong Kong without the permission of an immigration officer unless he has the right to land by virtue of s.8. Section 8(1) defines the categories of persons with the right to land in Hong Kong. On the face of the Ordinance, the applicants' father did not fall within any of those categories and was accordingly subject to immigration control as set out in s.11. Section 11(2) empowers an immigration officer, in giving permission to land in Hong Kong, to impose :

"(a) a limit of stay; and

(b) such other conditions of stay as [he] thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case."

59.These provisions being unambiguous, under what principles of law can it be said that the applicants' father was nevertheless free of such controls?

60.The fact that, prior to September 1969, British subjects and Commonwealth citizens were permitted to enter and remain unconditionally in Hong Kong could give rise to no legitimate expectation that the law would never change. Legitimate expectation can never be invoked to limit the powers of the legislature. By the enactment of the Immigration (Control and Offences) (Amendment) Ordinance 1969 visa requirements were imposed on British subjects seeking to enter Hong Kong and some thirteen years later the 1971 Ordinance was passed which consolidated and amended the law in relation to immigration and deportation generally. At the time when the applicants were born in March 1984 and March 1985 their father's stay in Hong Kong was subject to limits of stay, as evidenced by the endorsements in his passport.

61.The 1971 Ordinance cannot be read as if there was another category of persons, not expressed in s.8(1), with the right to land and remain in Hong Kong free of immigration control : namely, those British subjects who, by virtue of long residence in Hong Kong, could not be deported under s.3 of the Deportation (British Subjects) Ordinance of 1936. The fact that the Governor in Council could not have made a deportation order against persons in the father's position, even if grounds for such order existed, did not mean that the legislature was stripped of its power to put them under immigration control later on. Whether the legislature was acting "fairly" or "oppressively" in that regard is irrelevant to this appeal : The Director of Immigration was under a duty to administer the law as enacted by the legislature.

62.Having reached this point it becomes obvious that, at the time of the applicants' births in Hong Kong, their father was lawfully subject to "the immigration laws on the period for which he may remain" in terms of s.50(2) of the British Nationality Act 1981, and was therefore not "settled" in Hong Kong in terms of that Act.

63.I would accordingly allow the Registrar's appeal and make the orders as proposed by Mr Justice Chan PJ.

Lord Millett NPJ:

64.The question for decision is whether the applicants' father, whom I shall call "Mr Hussain", was "settled" in Hong Kong within the meaning of the Immigration Ordinance 1971 (as amended) at the dates of their respective births in 1984 and 1985. This in turn depends on whether on those dates he was resident in Hong Kong without being subject under the immigration laws to any restriction on the period for which he might remain there.

65.Mr Hussain was a British subject by birth, having been born in Pakistan in 1948. But he had ceased to be a British subject on the coming into force in the United Kingdom of the Pakistan Act 1973 following the departure of Pakistan from the Commonwealth. On the relevant dates Mr Hussain was a national of Pakistan. He held a Pakistani passport and a visa for entry into Hong Kong, but his passport was indorsed with a restriction on the period for which he might remain in Hong Kong. He was not granted unlimited stay in Hong Kong until 1988.

66.It is accepted that the restriction on Mr Hussain's right to remain in Hong Kong prevented him from being settled here so long as the restriction was lawfully imposed and enforceable by securing his involuntary removal from Hong Kong. It is also accepted that, under the terms of the Immigration Ordinance 1971 as amended regarded in isolation, the restriction was lawfully imposed and enforceable by the removal of Mr Hussain from Hong Kong under s.18(1)(b) of the Ordinance.

67.The Court of Appeal (Rogers Ag CJHC and Leong JA, Keith JA dissenting) held that, despite the terms of the Immigration Ordinance, the restriction on Mr Hussain's right to stay in Hong Kong was either invalid or, if valid, unenforceable, and in either case he was not liable to be removed if he remained after the time limit expired. Consequently he was settled in Hong Kong when the applicants were born and the Register of Births and Deaths and their birth certificates ought to be corrected to reflect this.

68.The majority reached this remarkable conclusion by holding that, as a British subject who had been ordinarily resident in Hong Kong continuously for a period of seven years Mr Hussain was deemed to belong to Hong Kong within the meaning of the Deportation (British Subjects) Ordinance 1936; that he had thereby acquired a right not to be deported from Hong Kong; that this right, acquired in 1958 had never thereafter been lost; and that as a vested right it had survived both the repeal of the 1936 Ordinance and the loss of Mr Hussain's British nationality in 1973.

69.The trouble with this reasoning is that it pays no regard to the actual wording of the 1936 Ordinance. Section 3 granted the Governor in Council power to make a deportation order in respect of an immigrant British subject "who does not belong to the Colony and who is" a person within one of four categories set out in the section. These did not include a person who had infringed a condition of his entry into Hong Kong or who had remained there after the period for which he had been permitted to remain had expired.

70.The section did not purport to confer any rights on those who, like Mr Hussain, were British subjects who belonged to Hong Kong or any one else for that matter. It merely conferred a power of deportation on the Governor in Council, but the power was strictly circumscribed. It was limited in respect both of the category of person who could be made subject to a deportation order and of the grounds on which he could be deported. Far from conferring rights on individual residents of Hong Kong, the Ordinance extended the Governor's powers of deportation. Whereas under previous legislation the Governor had no power to deport a British subject, now he could do so provided that the person in question did not belong to Hong Kong.

71.By limiting the persons who could be made subject to a deportation order, the Ordinance did not confer on Mr Hussain and others in his position who were not subject to the power of deportation a right not to be deported or immunity from deportation. They were merely not liable to be deported under the Ordinance even if grounds for deportation existed. The reason why Mr Hussain could not have been deported once he had been continuously resident in Hong Kong for seven years was not because he had thereby acquired a vested right not to be deported, but because there was never a day thereafter while the Ordinance remained in force when he was a person liable to be deported and the grounds for deportation existed.

72.But this did not affect the application of the Immigration Ordinance. Those who, like Mr Hussain, were subject to immigration control remained liable to removal if they stayed in Hong Kong beyond the period for which they were granted permission to remain. The fact that they were not liable to a different power of removal on different grounds under a different Ordinance was neither here nor there.

73.Since Mr Hussain had no right or immunity under the 1936 Ordinance he was not affected by its repeal. He was not liable to be made subject to a deportation order under the Ordinance while it was in force, and a fortiori after its repeal. The applicants' claim that Mr Hussain was settled in Hong Kong at the relevant times is based on the provisions of a repealed Ordinance which would not have applied to him even if it had remained in force. The claim must fail.

74.For these reasons, which are substantially the same as those given by Keith JA in his dissenting judgment, I would allow the appeal.

Chief Justice Li :

75.The Court, being unanimous, allows the Registrar's appeal and sets aside the orders granted by the Court of Appeal. The Court makes the orders as to costs set out in the Conclusion to the judgment of Mr Justice Chan PJ.

Representation:

Mr Michael J Beloff, QC and Mr William R Marshall, SC (instructed by the Department of Justice) and Mr Lee Tin-yan (of that department) for the appellant

Mr Gerard McCoy, SC and Mr Kwok Sui Hay (instructed by Messrs Clarke & Kong and assigned by the Legal Aid Department) for the respondents