Vision First reports that for almost a year some progressive legal professionals advised refugee clients to raise a “BOR 2 claim” together with their protection bids against torture, cruelty and persecution as prescribed under the Unified Screening Mechanism (USM).
“BOR” is short for the Hong Kong Bill of Rights Ordinance (Cap 383), wherein Article 2 describes certain fundamental human rights: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
HKBOR Article 2 (“BOR 2”) is a broad safeguard protecting the “right to life”. In brief, it defines that sentences of death may be imposed only for the most serious crimes and ought to be carried out pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Put simply, every human being has an inherent right to life which can only be forfeited in the administration of justice by a legitimate court that includes an appeal process. Amnesty of the sentence of death may be granted in all cases. It follows that no person can be unjustly killed, summarily executed, or fall victim to extra-judicial killing without legal proceedings.
The Hong Kong Bill of Rights is binding on all public authorities. In particular, the Court of Final Appeal found in the “Ubamaka judgment” (FACV 15/2011) that it may be unlawful for the Director of Immigration to exercise his discretion in favour of deporting refugees who might face arbitrary deprived of life – a deeply unattractive prospect contrary to article 2 of the Hong Kong Bill of Rights.
In light of USM having rejected 99.9% of claims in 2014, Vision First advises refugees to consider including the BOR 2 claim in their letters to Immigration raising asylum claims. By reserving the right to be screened for a risk of arbitrary deprivation of life, claimants have additional grounds of non-refoulement protection other than the three prescribed grounds.
Vision First reports that currently the Immigration Department will in most cases stay claims (whether at screening or decision stage) once claimants reserve the right to be assessed also for BOR 2. To date Immigration has not indicated in writing what their stance is regarding this new claim. This has the practical result of putting on hold such asylum claims until the USM is expanded to include an assessment for the arbitrary deprivation of life.
Consequently, the 826 refugees who had USM claims rejected at appeal in 2014 could theoretically lodge BOR 2 claims with the Immigration Department. It is reported that from 11 March 2015 detainees in Castle Peak Bay Immigration Centre will be permitted to file BOR 2 claims.