The insurmountable problem for the asylum-seeker and refugee children is that they are born stateless and bear the so-called “crime” of their parents – because of the criminalizing and discriminatory nature of the Hong Kong Immigration law.
The procedures for non-refoulement claimants to be qualified as non-refoulement claimants are by “criminalizing” them. All applicants will not be allowed to apply for non-refoulement claims if their visas are still valid. They will need to apply only when their visas have expired so that they will have to breach the immigration law by “overstaying”. It is through criminalizing these people then they could apply for not being “refouled”. The policy already suggests how discriminatory of the Hong Kong government is towards the asylum-seekers. By criminalizing them, and forcing them to be “illegal immigrants” they become the unworthy, the undeserving, thanks to certain local media and policy makers comments and campaigns.
Therefore, children who are born to asylum-seeker and refugee parents in Hong Kong are born with a criminal status. Because their parents are being criminalized by Hong Kong Immigration procedure to obtain the non-refoulment application by ‘overstaying’. When they are born, the children are also classified as “criminals” who have committed the same crime of overstaying, which is what their parents did.
Because of the government’s indifferent, discriminatory and even hostile attitude towards the group, the government has not been sensitive towards the complexity of the situation where they asylum-seekers are in. For example, there are hundreds of asylum-seeking children who are born in Hong Kong, but their status of permanent residents of the Hong Kong Special Administrative Regions under the Immigration Ordinance is not established, which is declared in their birth certificates. Therefore, the asylum-seeking children become stateless and deprived of the right to obtain nationality and worse, a lot of rights that a child should enjoy. However, according to the Basic Law Article 24, the Chinese citizen born in HKSAR whose parents are not HKSAR citizens, enjoy the permanent residency of HKSAR while the refugee children of other nationalities who are born in Hong Kong cannot become permanent residents. The policy is essentially discriminating against the children of other ethnicities.
Another case is that, there are some single-parent asylum-seeking families, in which the children are HKSAR citizens and the mother or father are asylum-seekers. For these families, they are not eligible to apply to join their parents who are non-refoulement claimants for residence in the HKSAR. Currently, there is no policy that allows children’s parents to stay in Hong Kong with their Hong Kong PR children. If the children apply to join their parents for residence in HKSAR by Dependant Visa, the dependants need to fulfil the criterial: 1) the parent aged 60 or above and 2) the sponsor (i.e. the child) is able to support the dependant’s (i.e. the parent) living at a standard well above the subsistence level and provide the dependant with suitable accommodation in the HKSAR. As for parents, it is virtually impossible for them to apply for any dependant visa based on the above criteria as the children could be very young. Therefore, it is impossible for the children to apply for their parents to sponsor their parents. And that visa could only be granted on compassionate ground and it happens very rarely (unless the children have mental, physical or psychological problems, but even with these issues there is no guarantee). When the parents’ non-refoulement cases are finalized, they will be repatriated or sent to other countries, which will cause either breaking up the single-parent families or these children will be deprived of their rights to stay in HKSAR and leave with the parents to be deported to their mother’s home countries.
Existing international and regional instruments leave lots of gaps for countries to exercise their discretion that could lead to ultimate discrimination of the vulnerables. For example, the current Unified Screening Mechanism assessment (USM) in Hong Kong is gendered. It generally defines non-refoulment claimants who are qualified to obtain the persecution claims based on “ethnic, religious and political and nationality issues”. For women who fled because of domestic violence brought upon by ethnic, and cultural practices, they are easily dismissed as these do not fall into the above criteria and therefore their cases could be dismissed easily as domestic problems are not fulfilling the criteria stipulated by the assessment mechanism.
The HKSAR Government is taking no actions to address the issue of statelessness and the Immigration Department refuses to grant the asylum-seeking children the right of abode. Hong Kong is one of the signatories to the Convention of the Rights of the Child (CRC), as the government has discretion over how they handle the children. For article 7, clause 1 it stipulates that ‘the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and to be cared for by his or her parents.’ However, in practice, children who are born of non-refoulement claimants are deprived of their rights to be Hong Kong citizens and their birth certificate is stated as “not established” in their status. For those who are born Hong Kong citizens and either one of the parents are asylum-seekers, they could face separation from the parents only because of the parents’ statelessness. These practices in reality contravene the spirit of the convention, nevertheless, the convention will not entail any condemnation and penalty to nations who are not abiding the convention.
Written by Isabella Ng – Founder of The Hong Kong Society for Asylum-Seekers and Refugees