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The Application of PRC Nationality Law upon the Hong Kong SAR Basic Law

The Application of PRC Nationality Law upon the Hong Kong SAR Basic Law. Group Members: Daniel Cheng Kenneth Cheung. Table of Contents. Definition of Nationality, Nationality Law The Nationality Law in China Hong Kong Basic Law Applications The idea of Compatriot Dual Nationality

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The Application of PRC Nationality Law upon the Hong Kong SAR Basic Law

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  1. The Application of PRC Nationality Law upon the Hong Kong SAR Basic Law Group Members: Daniel Cheng Kenneth Cheung

  2. Table of Contents • Definition of Nationality, Nationality Law • The Nationality Law in China • Hong Kong Basic Law • Applications • The idea of Compatriot • Dual Nationality • Art. 24 of HKBL and Case Illustration • Conclusion

  3. What is nationality • “Nationality surprising hard to define..., as are “membership of a state” and belonging to the population of a state • “no generally agreed definition of nationality” (Robin M White, Permanent resident of the Hong Kong Special Administration as a ‘Quasi-Nationality’) • The concepts of “nationality” and “citizenship” are similar • “nationality” stresses more on the international aspect • “citizenship” stresses more on the national, municipal aspect • “Every citizen is a national, but not every national is necessarily a citizen of the State concerned” (Leung, MF Priscilla, The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law, revised ed., Lexis Nexis, pp 93)

  4. “the state of being a citizen or subject of a particular country” (Dictionary of Law, Oxford) --> citizenship and nationality “the legal right of belonging to a particular nation” (Oxford Advanced Learner’s English-Chinese Dictionary)

  5. Nationality law • “A nationality law is precisely the criterion by which a state defines who are its nationals and the legal basis for the acquisition or loss of nationality.” (Wang Keju, Basic Principles of the Nationality Law of the PRC) • “Each state has its nationality law and statutes which, by defining who are its nationals, place individuals in the status of belonging to that state, give them the rights and obligations arising therefrom, and make their protection a duty of that state. The Universal Declaration of Human Rights regards nationality as a basic right of every person.” (Sheng Yu, China’s Nationality Law and Principles of International Law)

  6. Nationality Law in China • “A unified nationality based on national equality is an important principle of China’s Nationality Law, which unequivocally stipulates, “the People’s Republic of China is a unitary, multi-national state; person belonging to any of the nationalities of China have Chinese nationality” (Art 2 of Nationality Law of the PRC) • (Wang Keju, Basic Principles of the Nationality Law of the PRC) • Any person born in China whose parents are both Chinese nationality for any Chinese national. (Art 4 of Nationality Law of PRC) • Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality (Art 5 of Nationality Law of PRC)

  7. Hong Kong Basic Law • Article 18 “…National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region…” • Annex III “The following national laws shall be applied locally with effect from 1 July 1997 by way of promulgation or legislation by the Hong Kong Special Administrative Region: 5. Nationality Law of the People’s Republic of China.” • “The Nationality Law of the PRC is an example of a piece of national law which directly applies to the HKSAR by way of promulgation.” (Leung, MF Priscilla, The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law, revised ed., Lexis Nexis, pp 93)

  8. The application • The most significant and noticeable application: • The HKBL has mentioned the requirement of Chinese nationality for holding important positions in the HKSAR. e.g. the Chief Executive as prescribed by Art. 44, 61, 71, 90 and 101; the President of the LegCo, the Chief Justice, etc.

  9. One Country, Two Systems •  to safeguard China’s sovereignty, unity and territorial integrity (Priscilla M F Leung, One country, two systems: theory into practice) • The Hong Kong Special Administrative Region is an inalienable part of the people’s republic of China. (Art. 1 BL) • The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law (Art 2 BL) • “Hong Kong born Chinese, before the establishment of the HKSAR, are persons of Chinese nationality but not Chinese citizens. After the establishment of HKSAR, all Hong Kong Chinese will automatically become Chinese citizens holding HKSAR passport of the PRC and can exercise the rights of a Chinese citizen of HKSAR, under the principle of ‘one country, two systems’” • (Priscilla MF Leung, Application of PRC Nationality Law to HKSAR)

  10. Difference between “Nationality” and “Citizenship” • “Every citizen is a national, but not every national is necessarily a citizen of the State concerned.” (P Weis, Nationality & Statelessness in International Law, 2nd Revised Ed., Sijthoff & Noordhoff 1979, USA, pp. 4.) • Difference between a Chinese citizen and a person of Chinese nationality. - Chinese citizens are persons who can exercise the rights of a citizen in China - Persons of Chinese nationality mean that the persons have chosen to be Chinese nationals but may not be able to exercise rights as Chinese citizens

  11. Hong Kong Chinese born in Hong Kong before the establishment of the HKSAR are persons of Chinese nationality but not Chinese citizens. • However, due to political reasons, they cannot exercise rights as Chinese citizens, nor does China allow the Hong Kong people of Chinese nationality to exercise their rights as a citizen in China before the establishment of the HKSAR.

  12. Compatriots • Instead of being “overseas Chinese”, the Chinese in Hong Kong before the establishment of the HKSAR are called “compatriots”. • The idea of “Compatriots”. • After 1 July 1997, all Hong Kong Chinese automatically become Chinese citizens holding HKSAR passport of the PRC and can exercise the rights of a Chinese citizen of HKSAR, under the principle of “One Country, Two Systems”.

  13. Dual Nationality + Passport • As China does not recognize dual nationality, it is important for one to make sure one’s nationality in order to acquire the respective rights that one can enjoy. • Whether one can acquire the status as a HK permanent resident and thus as a Chinese citizen is one of the controversial and hot topics after the establishment of the HKSAR

  14. Article 24 of the Basic Law • The permanent residents of the Hong Kong Special Administrative Region shall be: • 1) Chinese citizens born in Hong Kong before or after the establishment of the HKSAR; • 2) Chinese citizens who have ordinary resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR; • Person of Chinese nationality born outside HK of those residents listed in categories (1) and (2); (Article 24(1)(2)(3) of BL)

  15. Cheung Lai Wah & Ors v Director of Immigration [1997] HKLRD 1081 Fact: The applicants were all born outside Hong Kong. In one case, the applicant had entered Hong Kong in early 1995 on a two-way exit permit, but she had overstayed in Hong Kong and was still in Hong Kong on 1 July 1997. Another of the applicants had entered Hong Kong otherwise than through an immigration control point prior to 1 July 1997 and the remaining applicants had entered Hong Kong otherwise than through an immigration control point on 1 July 1997.

  16. Held: • Dismissing the application • Reasons: • (1) The requirement that persons who claimed the right of abode in Hong Kong by descent should (a) prove the facts on which their claim was based to the satisfaction of the Director of Immigration, and (b) have obtained a one-way exit permit from the Chinese authorities before being admitted to Hong Kong was not incompatible with Basic Law arts.24, 31 or 39 or art.8(4) of the Hong Kong Bill of Rights.

  17. (2) Basic Law art.24 merely identified the categories of persons who had the right of abode in Hong Kong and it left the question as to how the facts on which the claim to right of abode should be established to be determined by the legislature in such legislation as was enacted to implement the provisions of art.24. • (3) Article 22(4) of the Basic Law applied to persons claiming the right of abode in Hong Kong under art.24. Accordingly, the Basic Law itself required persons living in mainland China who sought to exercise their right of abode in Hong Kong to obtain a one-way exit permit from the Chinese authorities before coming to Hong Kong.

  18. (4) Although the amendments to the Immigration Ordinance (Cap.115) made by the Immigration (Amendment) (No.3) Ordinance were to come into force on 1 July 1997 despite the No.3 Ordinance having been enacted on 10 July 1997, the fact that it had retrospective effect did not render it either unconstitutional or incompatible with art.12(1) of the Hong Kong Bill of Rights. The rights, which it qualified retrospectively, had been qualified by Basic Law art.22(4), and art.12(1) merely prohibited the prosecution of conduct which would not have been criminal at the time but for the retrospective effect of the enactment challenged. • (5) The definition of the relationship between parent and child in para.1(2) of the new Schedule 1 to the Immigration Ordinance, substituted by s.5 of the Immigration (Amendment) (No.2) Ordinance, was incompatible with Basic Law art.24(3) to the extent that it prevented children who claimed the right of abode in Hong Kong through their fathers from enjoying the right of abode if they were born out of wedlock. Accordingly the provision was in contravention of the Basic Law to that extent.

  19. However, this judgment was overruled by Court of Appeal in 1998 • “the barring of illegitimate children from the right of abode was unlawful and unconstitutional...... The appellate court also ruled that those arrived before 1 July 1997 could not be removed and should be made permanent resident •  the illegitimate children are entitled to claim their right of abode in HK • However, Guangdong authorities have clearly stated that they did not allow illegitimate children to apply one-way-permit •  they cannot come to HK

  20. Conclusion • While the Courts of Hong Kong are trying their best to strike for the balance between the direct application of PRC Nationality Law upon the HKBL and the solemnity of judicial independency when deciding cases, it is believed that more contentious issues will come up in the near future. Nonetheless the doctrine of “One Country, Two Systems” shall never be undermined but ought to be followed by both the PRC and HKSAR governments.

  21. References • Robin M White, Permanent resident of the Hong Kong Special Administration as a ‘Quasi-Nationality’ • Leung, MF Priscilla, The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law, revised ed., Lexis Nexis. • Dictionary of Law, Oxford • Oxford Advanced Learner’s English-Chiense Dictionary • Priscilla MF Leung, Application of PRC Nationality Law to HKSAR • Hong Kong SAR Basic Law • The PRC Nationality Law • Wang Keju, Basic Principles of the Nationality Law of the PRC • Sheung Yu, China’s Nationality Law and Principles of International Law • Cheung Lai Wah & Ors vs. Secretary of Justice

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