Legal Update from Barnes & Daly

Post Date: Jul 20th, 2011 | Categories: Advocacy | COMMENT

Version Française: Une brève mise à jour de Barnes & Daly

Vision First receives frequent requests for updated information on the legislative process concerning asylum-seekers and refugees in Hong Kong. We have asked Mr. Mark Daly to kindly prepare an outline of the various cases his firm is working on. While currently there isn’t much change to the status quo, our members will be glad to hear they haven’t been forgotten in their long struggle. Many dedicated advocates are working tirelessly to bring about the changes needed to address the failures, limitations and omissions of the city’s asylum system.

A brief update from Barnes & Daly on some of the legal developments in Hong Kong (July 2011).

1. Customary International Law case

The judgment from the Court of Appeal, relating to the obligations on the Hong Kong SAR under customary international law (“CIL”) for refugees and fair refugee status determination (“RSD”), is still pending. This is extraordinarily 16 months since the hearing last year, but the decision could be handed down at any time.

[Judgment was issued 21 July 2011 Judgement CACV 132-137(2008)]

2. Right to Work case

Right to work for refugees and successful CAT claimants – Barnes & Daly are taking the case to the Court of Appeal. The case may have prompted the HKSAR to begin to consider the work issue which has found its way, in very attenuated fashion, into the proposed CAT legislation (see note 6 below). Please see link below for the judgment at the Court of First Instance.

3. “Temporary visa” case

Barnes & Daly are attempting to take the case to the Court of Final Appeal (highest court in Hong Kong). Please see link below for the judgment at the Court of Appeal.

4. UNHCR Fast Tracking

Barnes & Daly have concerns based on recent cases that the UNHCR continue to make rapid and unfair decisions – in particular while asylum seekers are detained upon arrival, have no opportunity to evidence their claims, and do not have the opportunity to obtain legal representation.

5. New CAT system

The new CAT system is picking up steam. This continues to raise new legal issues given the “overlap” with refugee claims to the UNHCR and CAT claims to the HKSAR. Although it’s early days for this system (although far too slow from the applicants’ perspective) one of the benefits is a fairer assessment under CAT. With government funded legal representation there is the possibility for an enhanced ability to obtain evidence for applicants which can be used in the UNHCR process.

6. Immigration (Amendment) Bill

Hong Kong SAR has tabled a proposed law to assess asylum-seekers claims of torture. Please see the link below to the proposed new HKSAR legislation for CAT claimants which the HKSAR will try to force through in the new legislative term. There are numerous problems with the legislation, first and foremost that it does not include refugees and asylum seekers, and Barnes & Daly are further reviewing the proposal.