Changes to immigration law set

July 19, 2021

The Immigration (Amendment) Ordinance 2021 will take effect from August 1, further improving the handling of non-refoulement claims, the Government announced today.


Pursuant to the amended ordinance, a claimant must attend interviews upon request by the Immigration Department. If a claimant fails to attend an interview, the department may still decide on the claim.


During the screening interview, the department will, if needed, arrange a publicly funded simultaneous interpretation service for a claimant. Under certain circumstances, it may direct a claimant to communicate in a language that it reasonably considers the claimant could understand and communicate in.


If a claimant’s physical or mental condition is in dispute and is relevant to the consideration of the claim, the department may make arrangement for such claimant to undergo a medical examination.


If the claimant fails to give consent that is necessary to enable a medical examination to be arranged or conducted, undergo the examination or disclose the full medical report, the department may decide not to take into account the claimant’s disputed physical or mental condition.


For the handling of appeals, the amended Immigration Ordinance also authorises the Torture Claims Appeal Board (TCAB) the aforementioned powers relating to language and medical examinations. If an oral hearing is required, the notice period should be 28 days before the hearing. In certain cases, the TCAB may shorten the notice period to less than 28 days but not less than seven days.


All claims made after August 1 will be handled under the new provisions. Claims and appeals made before that date but pending decisions by the department or the TCAB will be handled as per the savings and transitional provisions under the newly added Schedule 5 to the Immigration Ordinance.


On detention, the amended ordinance stipulates that, in addition to specific circumstances of individual cases, factors which may justify a longer detention period should be taken into account in considering whether a period of detention is reasonable and lawful. Such factors include whether a person poses or is likely to pose a threat or security risk to the community.


To expedite the removal of unsuccessful claimants, the department has been closely liaising with governments and airline companies of major source countries of claimants to enhance the overall efficiency of removal.


In addition, the amended ordinance stipulates that once a claim has been rejected by an immigration officer, even when the appeal is pending, the department may commence liaison with relevant authorities for repatriation arrangements in parallel.


The penalties of relevant offences under the amended Immigration Ordinance have also been increased. The maximum fine for an owner of an aircraft and his agent carrying a passenger arriving in Hong Kong without a valid travel document will be raised from $10,000 to $100,000.


The maximum penalty for employing an illegal immigrant, overstayer or a person who was refused permission to land, will be increased from a fine of $350,000 and three years' imprisonment to a fine of $500,000 and 10 years' imprisonment. The director, manager, secretary or partner of the company concerned may also bear criminal liability.


The Secretary for Security is also empowered to make regulations for the implementation of the Advanced Passenger Information (API) system to fulfil the international obligation of the Hong Kong Special Administrative Region under the Convention on International Civil Aviation.


In accordance with the standards proposed by the International Civil Aviation Organisation, the Government stressed that it is studying, having regard to overseas experiences, the operational arrangement for the API system and will make relevant subsidiary legislation.


It added that it has implemented various measures for handling non-refoulement claims over the past years with good progress and the executive authorities will be able handle such claims more effectively upon the commencement of the amended ordinance.

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