The Hong Kong government has a preference to describe asylum in negative terms: “Non-refoulement claimants in Hong Kong are illegal immigrants or overstayers, even if their claim is substantiated … they may not take up employment in Hong Kong; violation of the relevant provisions is a criminal offence punishable on conviction to a fine of up to level 5 ($50,000) or to imprisonment for three years … the sentencing guideline in respect of the relevant provision states that 15 months’ imprisonment should be imposed on a person convicted of an offence.” (Finance Committee 2015-16)
Very few lawyers stand apart for attaching the utmost importance to refugee rights and striving to ensure such rights are respected and safeguarded in the interest of the asylum community and the city’s reputation. The reality is that in most cases they have to represent clients pro bono.
In February 2014, barrister Robert Tibbo obtained leave to make an application for the judicial review of the torture claim of a South Asian woman whose appeal was dismissed without an oral hearing. Her council, a non-executive director of Vision First, argued that various factual matters relevant to the case had not been addressed by the adjudicator who cherry-picked country of origin information.
The woman sought refuge in Hong Kong in 2005 to escape from threats to her life and safety due to her political activities and the serious abuse she received from her husband affiliated to an opposing political party. As if her struggle for protection was not enough, a decade later she stood before the bench in Eastern Magistracy to answer to charges of working illegally.
In 2013, the woman was arrested by police at the back of a restaurant where she occasionally washed dishes for exploitative wages. For months she had paid cash for a dilapidated subdivided room, because the landlord refused to accept bank transfers from ISS-HK and she was unable to find alternative accommodation within the paltry rental budget that was then 1200 HK$.
It is not uncommon for refugees to rent the cheapest rooms from landlords who prefer cash payments to reporting bank transaction in income statements. In such cases tenants are obliged to secure cash somehow, or risk being homeless. Under the circumstances, the great majority of refugees seek employment in the informal economy and risk arrest, prosecution and jail for attempting to make ends meet.
Interestingly this woman’s situation ticks several failures in the current asylum policy: 1) denial of protection; 2) prolonged determination of claims; 3) prohibition from working, and 4) insufficient welfare assistance, which in this case included failure by ISS-HK to secure suitable accommodation for a vulnerable woman. Robert Tibbo is seeking a stay of prosecution arguing that systemic failures placed his client in a predicament in which she worked to avoid sleeping in the street.
At a hearing in April 2015, the magistrate suggested that a judicial review be sought against the Director of Immigration who sets the recognizance conditions, including the prohibition from taking up employment. The argument is that if the government openly met the basic needs of refugees and signed tenancy agreements, then refugees would not be compelled to work illegally.
Robert Tibbo explains, “This case is likely to go to the Court of Final Appeal. It is hardly unique since countless refugees struggle daily to pay necessary costs not met by ISS-HK. My client is a victim of an intentional failure by the Government to meet the basic needs of refugees who, when facing similar charges, often plead guilty to avoid stiffer sentences while cognizance that they were entrapped. This case has the potential of changing the system.”
Refugees in Hong Kong worry most about two issues: protection and welfare. Over the years the Immigration Department has done little to allay suspicions that the effective zero-percent acceptance rate is a poor assessment of the asylum community. Welfare issues are equally troubling with policies that deliberately entrap refugees below the poverty line without employment rights.
On a scale of importance, Vision First is primarily concerned about the failure of the Unified Screening Mechanism to generate protection. In the interest of accountability and transparency, Immigration ought to publish monthly results to inform interested parties about its accomplishments in the asylum sphere. This would undoubtedly better inform opinions.
After Hong Kong’s top court denied the right to work in February 2014 to mandated refugees and successful torture claimants, it became disappointingly clear that the authorities are years away from granting employment rights to asylum seekers condemned, by policy and design, to a protracted state of emotional and economic destitution with deterrence aims.
A combination of questionable policies force refugees to run the gauntlet between insufficient welfare and imprisonment for working illegally. Such arrangements strike offenders heavily with arrests and imprisonment that are hardly avoidable when money must be regularly raised to meet necessary expenses, such as rent surpluses, utilities, food and clothing.
Instigated by superficial media reporting, common perception assumes that refugees should receive less welfare than impoverished residents. This is shamefully reflected in the welfare disparity between citizens and refugees, despite the former being allowed to work and the latter jailed up to 22 months for breaking the law in a hostile, and arguably unjust environment.
On 22 April 2015, Vision First and the Refugee Union met with the Hon. Fernando Cheung Chiu-hung to strategize on increasing welfare levels that are unrealistically low (HK$ 1500 for rent and HK$ 1200 for food) and have fallen behind inflection, particularly in the rental market. A first batch of 300 complaint forms were submitted to the Legislative Council’s Redress System to trigger a discussion by the Panel on Welfare that advises the government on such matters.
Questions will be raised about the adequacy of the current assistance which fail to meet the basic needs of a growing refugee population. Deterrence objectives and criminalization of vulnerable foreigners should not overshadow welfare considerations when men, women and children are suffering in our community. As long as work rights are denied, the authorities have a legal and moral obligation to increase welfare to realistic levels consistent with human right laws.
A fire broke out on a remarkable foot bridge over four-lane Yen Chow Street West in Sham Shui Po on the night of 19 April 2015. This pedestrian crossings was home to over a dozen homeless persons who lived in semi-permanent huts made of plywood, cardboard and plastic sheets. Some had lived there for years.
News of the fire spread quickly among refugees who three times a month join a local charity, which prefers to remain anonymous, to distribute food to this homeless community comprising mostly elderly and troubled residents. This humanitarian service has brought refugees closer to impoverished residents who suffer similar neglect and deprivation in our affluent city.
While firefighters doused the flames, several concern groups rushed to offer assistance and speak about the shameful conditions endured by several hundred vulnerable persons in the neighbourhood. A Refugee Union member later observed, “NGO people should coordinate efforts to advocate for badly needed changes … better welfare and proper homes is what these people need … Isn’t the government ashamed how people suffer in the streets?”
After the fire, a passive-reactive government did what it does best – lock the stable doors after the horse has bolted. Drawing parallels with the fires that brought death and destruction to refugee slums, the Fire Service Department clamped down on the homeless people living on that food bridge with little concern where they would end up sleeping – possibly under a different flyover.
An NGO worker familiar with the area reported that there are over 60 Vietnamese refugees living in cardboard huts under that section of the West Kowloon Corridor. A long row of huts adjacent to the Tung Chau Street Park offers a sheltered space for sleeping and storage. These shacks are apparently tolerated by the authorities on the hidden side of the wet market where they are less likely to offend the public conscience.
It is understood that the refugees living there collect groceries at the ISS-HK appointed shops and cook with gas stoves on the pavement. There is no electricity for refrigerators. These refugees are unable to rent rooms for the 1500$ allowance and lack the organizational skills to request better assistance. They might strengthen statistics presented to the Social Welfare Department that encompass refugees who collect food rations, but seemingly do not require rent assistance.
Vision First will partner with Refugee Union to plan a Vietnamese language drive to reach out to this most marginalized and uninformed sub-group said to comprise veterans who have been in Hong Kong for twenty years as well as newcomers who arrived within the last year.
The plight of the homeless ought to be a concern for all citizens privileged to sleep under a proper roof. The human suffering caused by ineffective policies ought to resonate with everyone as we wonder why government and community are failing the most vulnerable in society, citizens and foreigners alike.
“Tonight we will gather to serve the homeless again,” remarked a refugee mother, “There are people suffering worse than us and this (community service) opened my eyes. I cannot work, but I can help other needy people. This is very meaningful for me. At the end of the day we are the suffering people … It doesn’t matter the colour of our skin or where we come from.”
Called to the stand in Shatin Magistracy, Mohammed faced charges of breaching conditions of stay by taking up employment unlawfully. With the assistance of a Hindi interpreter, the despairing 50 year-old listened carefully before entering a plea – NOT GUILTY!
Asylum seekers are most commonly tarred with one brush. Public opinion is almost unanimous in accusing them of beating a path to our city to fraudulently drink in its riches by abusing welfare assistance, or toiling in the underground economy. Obfuscating the truth, the authorities regularly promote to the inattentive a rejection rate of 99.9% as evidence that only 1 in 1000 claims is meritorious.
The government remains unyielding and is adamant that the asylum mechanism offers genuine claimants a fair chance. No explanation is given about cases that have been pending for years often stretching to a decade. At the other end of the spectrum are recent arrivals who presumably didn’t expect to suffer like beggars after lodging protection claims with the Hong Kong Government.
Everything was better in Mohammed’s life before he took refuge in our city. If he didn’t face danger, he wouldn’t have left behind a supportive wife and adult children, abandoning a comfortable home and a thriving family business. At half a century of age, he hardly fits the stereotype of an adventurer seeking a better life in a developed country where illegal work might support remittances home.
One night, a few months after being released from Immigration detention, Mohammed regained consciousness in a ward at Queen Elizabeth Hospital. “I didn’t know how I got there. I was feeling ill that morning as I hadn’t had anything to eat and I was exhausted by sleeping outside week after week. The nurse told me that I had hit my head when I collapsed in the street. An ambulance was called and I was admitted to hospital for three days until I recovered.”
Holding back tears, he finds it hard to continue, “Those were the only three days when I ate properly since I was released from CIC. The nurses gave me extra food to make me stronger. For several months before I only ate what shops donated to me in Chung King Mansions. It was never enough. I lost a lot of weight and was often sick. I was worried when discharged from hospital as I knew I would be hungry.”
Mohammed reported that he had registered at the Social Welfare Department and had been referred to ISS-HK, but nobody called him for months. He forgets how long it was because several months passed in a blur of destitution, begging for handouts, sleeping in the streets, falling sick and depressed and always struggling with hunger. As if life couldn’t get more distressing, it did.
One Ramadan afternoon before the Zuhr prayers, he was accosted by a faithful at the Kowloon mosque who, presumably noticing his grime state, inquired about his condition. Mohammed explained that he was a refugee and had long run out of money and support. The well-wisher showed concern and with the enticement of a ‘breaking fast meal’ invited him on a trip in a private car to a recycling yard in Lok Ma Chau. The arrangement did not raise the suspicions of a newcomer in an international city.
Beggars can’t be choosers and nothing seemed out of the ordinary for hungry Mohammed about Muslim faithful offering desperately needed support in the name of Zakat – charity being one of the five pillars of Islam and a special obligation during Ramadan. Nobody suspected that police commandos were concealed in nearby bushes cocking machine guns to raid the isolated yard.
Around 3:30pm, before Mohammed enjoyed a single morsel of food, armed police burst inside. In the ensuing chaos, the panic-stricken refugee dove inside a wrecked car hugging the rusty floor until he was dragged out by the collar of his jacket two hours later, sweaty and confused. The fact that he was hiding from enforcement agents was subsequently put forward as evidence of his guilt.
Mohammed stands accused of working illegally. The police took photos of those arrested after the raid, not when they were allegedly working. The threadbare clothes of a homeless existence were put forward as work clothes, though Mohammed had arrived an hour earlier and his hands were clean.
It is certainly possible that Mohammed is lying and had accepted an offer for work at a time of acute desperation. Perhaps Mohammed is afraid of admitting the truth for fear of being jailed for 15 months for working illegally. Perhaps it wasn’t the first time he went to that yard and the police had failed to take such photo. But he claims to be innocent. And this arrest consequently raises more questions than answers.
How much of a crime is it to steal bread when you are hungry? How are refugees expected to survive for weeks and months before receiving welfare? For that matter, refugees are trapped between inadequate assistance and cope without breaking the law. Is the government promoting “no welfare – no work” entrapment? In some jurisdiction offenders may be found innocent when authorities use deception to make arrests. Shouldn’t the courts take note of contextual evidence?
In pre-industrial, agrarian society the needs of the vulnerable were generally met by family, kinship provisions, neighbourhood, informal support networks, religious institution and the charity of the rich based on normative values of empathy, mutual help, locality ties and religious beliefs. The state offered no institutional assistance.
In modern times, these informal arrangements were admirably taken over by the state in the interest of “those who are not capable without help and support of standing on their own feet as fully independent or self-directing members of the community”. It was understood that “welfare addresses social needs accepted as essential to the well-being of a society. It focuses on personal and social problems, both existing and potential.” (HK Gov 1965 + 1991 White Papers).
Nonetheless, with 1.5 million citizens living in poverty, and thousands more struggling to afford three square meals a day, the Hong Kong welfare model is often considered an embarrassment. The administration falls short of fully mobilizing its considerable resources to alleviate the emotional and economic suffering of its most vulnerable citizens.
In reality, scholars tend to see local welfare as a residual system. That is welfare that only partly ameliorates the failures of the market economy, precisely because the privileges of the rich in society should not be undermined by a burdening tax system that is claimed would inevitably become needed were more services needed by larger numbers of welfare claimants.
After decades neglecting refugees, the government provided welfare in 2006. But the authorities persistently reiterate the service is “to prevent destitution while not creating a magnet effect which may have serious implications for the sustainability of our current support systems and for our immigration control.” In other words, this is another form of residual welfare.
But here is the catch. Uprooted from family, kinship and locality ties, refugees in Hong Kong are displaced and deficiently assisted by support networks, institutional services and charitable organizations. The assistance levels provided by the government condemn them to dire poverty that is compounded by the denial of work rights and 15 months imprisonment for those arrested working.
As opposed to a solidarity model based on principles of mutual responsibility, a residual welfare model offers a partial safety net confined to those who are unable to manage otherwise, with the assumption that they are able to locate further sources of assistance on their own. This notion then suggests that 10,000 refugees in Hong Kong ought to supplement inadequate government assistance through hand-outs from family, countrymen, neighbours, religious institutions and NGOs … or by working illegally.
Policies directed against the poor have to do with the government abdicating its duty to alleviate distress and poverty, as much as with crafting a hostile environment in which an undesirable foreign class gets adapts by resorting to all sorts of social tricks and risking arrest for doing something illegal because they have no choice. A case in point is a refugee who already has 5 convictions for theft. He candidly explains, “I steal baby formula because easy to sell. If police arrest me I go prison 2 to 3 months. If I am arrested working I will go prison for 2 years because of prior convictions.”
The expectation of self-reliance from refugees who frequently don’t know a soul in town is absurd. They report the absurdity of the residual welfare system through suggestions commonly made by their case workers:
- “You must wait 2 to 3 months before we start the assistance.”
- “We cannot help you. You must find the money yourself.”
- “You should ask some NGO to pay for or donate what you need.”
- “You should ask your friends to help you pay for it.”
- “You should find some church to assist you.”
- “This is not our problem. You must manage by yourself.”
“Our experience is that walls do not work … Walls can sometimes divert movement, but will not solve the problem”, said the UNHCR chief Mr. Guterres about the doubling of asylum seekers in Europe in 2014.
Hong Kong experienced a surge in the number of people claiming asylum, with 4,634 new cases lodged between March and December last year. Are these new asylum seekers also new arrivals? Have they been absconding for years and only recently came to know of this avenue of protection?
The CIA World Factbook puts Hong Kong’s land border at 30 km and its maritime border at 733 km, most of which is hard to penetrate undetected. We can only guess, but what is hardly a conjecture is that the controlled entrance points at the airport and land crossings are not the only passages into Hong Kong.
At a time when the authorities are targeting undesirable arrivals at the airport, nothing is said about the considerable number of refugees who enter illegally through other ways – some for the second or third time. It appears that the border with China is rather porous and, for the right price, the trip can be arranged with few hassles and no delay. The choices are various: through the fence, over the hills and by speedboats, known colloquially as ‘ferries’.
From many accounts collected by Vision First over the years, entering without a visa is not a matter of difficulty, but unsurprisingly only a question of money. In 2009 the going rate was 4,000 HK$, while today refugees are charged 12,000 to 15,000 HK$ per person.
Why is it so? Who is involved and who profits from this trade? Certainly it does not seem unreasonable, if the government is really worried about a trend that sees ever more requests for protection, to control what is now an extremely porous border. Or is it not a priority?
Here is the narrative of a refugee who recently arrived from Shenzhen that indicates the ease with which arrangements and journeys are made:
“I couldn’t get a visa with my same name so that is why I had to get illegal entry to Hong Kong. We applied for visa for China. It is not easy. I checked online. I checked with tourist agents. We made a tourist package and China sent us the information. We paid 238 USD per person in our group and they issued a letter that we took to the embassy in (our country).”
“Then we bought one-way air tickets to Guangzhou and stayed at a hotel booked online. The second day we took a train to Shenzhen … We didn’t get a stamp on our passport so we didn’t know how long we could stay in China. We waited there.”
“I asked [people] if there is any way to go from there to Hong Kong. A man gave me his mobile number. I used to talk to him every day. He kept telling me, ‘It is not ready. When it is ready I will let you know.’ He asked for 13,500 HKD each person … Every day I called him and asked when we can leave. He said the sea is dangerous, the cops can come there, so you must wait.”
“Almost one month later he suddenly called, ‘Today you must get ready’ … At 6pm we checked out of the hotel. We called a taxi. I called a Chinese guy who told the taxi driver where to go. I don’t know the location where the guy was waiting for us. He saw us and said, ‘You follow me’. I had never seen him before. We walked … then we stopped in a very dark place. He showed us a place on the water.”
“He told us to go sit (on the shore). There were stones in the shallow water and our feet got wet. Later several rowing boats arrived and took us. They rowed for a while and stopped under some trees, along the seashore. We waited longer. Then one of them took a torch and flicked the light a few times. Suddenly a motorboat appeared from the dark …”
“It was an outboard boat made of wood, about 3m long. It had a big engine. I was very scared. In my life it was the first time I had this experience. I was holding on and did not know what would happen. The driver said, ‘Keep still. Don’t move. Head down. Police there.’ He drove very fast …”
“Suddenly I saw my SIM card activated to Smartone, then I knew we were in Hong Kong. I ask him to stop us there as we were afraid and wanted to get off the boat. But he said, ‘No. Just sit there!’ He stopped further up by a small slope. He walked up and asked us to follow him. He called another man who was 20 meters away.”
“I feel that the border between China and Hong Kong is easy to cross. All the time I was praying in China on the bed because even my friends said it is not easy. I was afraid of crossing the sea, but these people made it very easy. Perhaps I was lucky because others say it is very dangerous …”
We are pleased to offer all refugees on a first come, first served basis 250 free tickets for the equestrian spectacular “Cavalia”
Date Wednesday, 15 April 2015
Location Central Harbourfront Event Space
Big white circus tent at Central Star Ferry
Next to the Hong Kong Observation Wheel at IFC
Registration Call Vanessa to register at 54282427
Duration 2 hour show with a 30 minute interval
Age Children are welcome if they are old enough to sit twice for one hour
Parents should decide if their young children will enjoy the show
Conceived by Normand Latourelle, one of the co-founders of famed Cirque du Soleil, Cavalia is a fresh mix of equestrian and performing arts, multimedia and special effects, innovatively integrating acrobatics, dance, aerial stunts and live music.
The show – often labelled as an equestrian ballet – combines advanced technology and the fundamental relationship that humans have developed with horses throughout time; enabling us to build bridges between cultures, to expand civilization and now to produce the purest form of art, one created through kindness, patience, and love.
A show unlike any other, Cavalia celebrates the relationship between humans and horses, virtually reinventing the equestrian arts.
There are two sides to the issue of foreign domestic workers falling pregnant and losing their jobs – one is local, the other overseas. On the home front, TVB recently reported on the plight of thousands of maids whose lives were disrupted by pregnancies that are not formulated into policies and, in some cases, are not respected by employers as workers’ rights.
There are some 320,000 foreign domestic helpers (FDH) who account for around 3 per cent of the Hong Kong population. The infamous case of Erwiana symbolised the risks of serious human and labour rights violation by devious employers who might treat maids as disposable slaves. By seemingly failing to enforce the law, the government is not making their plight easier.
Maternity protection is clearly a major concern for hundreds of thousands of female workers in prime child-bearing age. The Employment Ordinance is crystal clear: maids are eligible to 10 weeks’ paid maternity leave (after 40 weeks employment) and the dismissal of a pregnant worker is an offense. An employer who contravenes the provision is liable to prosecution and a fine of HK$ 100,000. But how many employers were successfully prosecuted?
The grim side of this story is that hundreds of pregnant maids seek asylum after being unjustly terminated, or falling out of employment The fear of departing Hong Kong should not be oversimplified. The fear matrix may include complex factors: income loss, illegal work, local partners, prior relationships, support networks, loan sharks, debt bondage, ostracization, religious prohibitions, family shame, customary expectations, racial discrimination and the threat of honour killing.
Contrary to popular belief, any person who overstays in Hong Kong may lodge a protection claim which ought to be approached on the premise that it is genuine until it is proven that it cannot be substantiated. Consequently no adverse inferences may be drawn against ex-maids (pregnant or not) since they might have legitimate claims and several have been recognized as refugees.
Our blog “Understanding the domestic work-refugee nexus” explained that maids are predictably drawn into the asylum sphere for several reasons. A crucial one is that they are not just workers, but are also women who endeavour to foster human relations in a society that diminishes their social worth and dehumanizes their femininity. It is natural that maids and refugees date because both communities are shunned by residents and are often deemed lesser human beings.
The distribution of thousands of boxes of Pampers (and condoms) at Vision First testifies to an escalating problem that the authorities are advised not to underestimate. The big picture is as predictable as it is problematic. Short of sterilization, Immigration has no way of curbing the sexual activity of 320,000 mostly female maids and 10,000 mostly male refugees who find comfort in each other’s arms. Is it surprising that these two communities meet and mingle?
Under the existing scheme, the government offers pregnant maids few choices but to return home under impoverished, unsafe circumstances, or seek asylum. Refugee fathers have little to offer their new families without work rights and adequate welfare assistance. The immigration status of the children follows that of the parents: if neither is a permanent resident, then the children are overstayers under the family’s or a parent’s claim.
The fear matrix becomes crucial. Once the asylum process is concluded, mothers ponder the pros and cons of returning home: Is the fear greater than the prospect of an immiserated existence? Is the danger of returning substantial, or could alternatives be explored given time? Nobody is under any illusion about the zero percent acceptance rate, but the variables are many and timing is key, because it is easier to return with a toddler than an infant. It would be advisable to allow mothers to work again rather than compel them to seek asylum as the only available pathway.
The government is concerned about the escalating cost (640 million HKD according to this report) of the asylum scheme. Priority should thus be given to formulating viable alternatives. Hong Kong society cannot enjoy the privilege of (underpaid) domestic workers without making provisions for natural consequences. We should not turn a blind eye to thousands of women whose rights are violated by policies that fail to envision maternity and its ramifications locally and overseas. Again Hong Kong is attempting to have its cake and eat it.