Understanding Removal Orders

Post Date: Apr 5th, 2012 | Categories: Advocacy | COMMENT

1.        “Removal Orders” (RO) are issued by the Immigration Department (ImmD) and do not require your signature to become effective. It doesn’t matter whether you sign or not. The RO remains in force until it is either cancelled or withdrawn. The document ImmD asks you to sign is the “Notice of Removal Order and Right of Appeal” (the Notice). This informs you that you have the right to appeal against the RO within 24 hours.

2.      Whether you sign the Notice is not important, but you must appeal within 24 hours by filing the “Notice of Appeal to object to the RO or you may lose the right to seek a judicial review in future. Later you could say “I didn’t know I should have signed” or “I didn’t know that I could have appealed”. But, these excuses won’t be accepted as an interpreter explained the situation and you signed that you understood what was said.

3.       If you don’t appeal, you will lose your right to do so later. If you do appeal, your appeal will be dealt with by the Immigration Tribunal and, in normal circumstances, will be dismissed without a hearing.

4.       If your appeal is dismissed, ImmD will give you a “Notice of Dismissal.

5.       Therefore, strictly speaking, the RO will be in force no matter whether you signed it or not. If you sign the Notice that simply means: a) you understand you have the rights to appeal, b) you have been informed you must do so within 24 hours.

6.       There is no time limit to effect the “removal”.  According to the court, it must be as soon as possible and within a “reasonable period”.

7.       However, as most asylum-seekers made a CAT claim and/or registered with UNHCR, it is ImmD policy not to remove these people until their cases have been determined and closed.

8.       In the past, most asylum-seekers were detained at CIC pending CAT determination. Since the case of “A & Others”, the court obliged ImmD to release claimants on recognizance if they could not be removed within a “reasonable period”. As CAT and UNHCR cases took a long time to assess, the court took the view that people should be released on recognizance (i.e. Immigration Paper) instead of being detained.

9.      However, if ImmD believes CAT and/or UNHCR cases might be completed within a “reasonable period”, they can refuse to release those detained in CIC. This is why some people with valid claims remain in detention and some families are split between release and detention. Recently, many CAT claimants are detained again since they refused to attend the screening interview, or refused to complete the Questionnaire, or failed to sign bail, etc. Note: if you fail to attend two screening interviews or return the completed 72Q within 28 days – your CAT claim will be automatically closed.

10.    It is not only the RO which eliminates the claimant’s rights to work, although those papers are used as a further reminder and deterrent. Even those who don’t have a valid visa, such as tourists or students, cannot work despite not having a RO. Whether you have the rights to work is subject to the condition of stay.

11.   In principle, ImmD cannot use force to remove you.  They cannot tie you up and put you on a plane (or use injections as some rumours circulate).  These are commercial planes with other passengers. If you refuse to board the plane or don’t cooperate, the pilot will refuse you onboard and ask ImmD to take you back. ImmD officers will not escort you back to your country. Besides, destination agreements are required before departure if your passport has expired, which is often the case.

12.   ImmD will then take you back to Ma Tau Kok and CIC later.  A few weeks later, they will try to send you back again. One failed CAT claimants has already been detained 9 months at CIC and still refuses to go back. However, ImmD will refuse to release you unless there is change of circumstances and they consider granting bail (i.e. you have a judicial review challenging the Removal Order or Deportation Order). At this point the RO is proper, unless you already married a HK citizens and have a family, in which case you can apply for a judicial review on other grounds.

13.        When CAT and UNHCR have been refused, it’s difficult to object to a RO. If you have valid reasons, then go to Court for a judicial review by either applying for Legal Aid or representing yourself. According to the law, you have to do this within 3 months from the Petition date. Otherwise you would have to seek an extension out of time, which is more difficult to get approval for. Since both the UNHCR RSD process and the CAT mechanism have taken their course, it is difficult to apply for a judicial review and obtain Legal Aid for its defense.