Removal Assessment and Litigation Branch

The Removal Assessment and Litigation Branch, which oversees the Removal Assessment and Litigation Division, was established in June 2016. The Branch and its Division are under the command of an Assistant Director and a Principal Immigration Officer respectively.

The Removal Assessment and Litigation Division is responsible for screening claims for non-refoulement protection on all applicable grounds¹ lodged by persons not having the right to enter and remain in Hong Kong. The Division also provides support to the government’s comprehensive review of the strategy of handling non-refoulement claims, and handles appeal/petition and litigation cases relating to non-refoulement claims and enforcement.

¹ Applicable grounds include risks of torture under Part VIIC of the Immigration Ordinance (Cap. 115, Laws of Hong Kong); risks of absolute and non-derogable rights under the Hong Kong Bill of Rights (HKBOR) as set out under the Hong Kong Bill of Rights Ordinance (Cap. 383, Laws of Hong Kong) being violated (including right to life under Article 2 and torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the HKBOR); and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees.

Unified Screening Mechanism

Illegal immigrants, overstayers or persons refused entry by the Department upon arrival in Hong Kong do not have legal status to remain in Hong Kong. For effective immigration control and public interest, they should be removed from Hong Kong in accordance with the Immigration Ordinance as soon as practicable.

Pursuant to a number of court rulings, if a person to be removed to another country claims that he would face risks of torture, violation of his absolute and non-derogable rights under the Hong Kong Bill of Rights, or persecution if so removed, then the Department must withhold the claimant’s removal to that country until his claim is finally determined as unsubstantiated through procedures meeting ‘high standards of fairness’.

To fulfill its obligations under the United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Hong Kong Bill of Rights and the Immigration Ordinance, and to execute the relevant court rulings, the government introduced the Unified Screening Mechanism (USM) in March 2014 to determine non-refoulement claims on all applicable grounds. Procedures under USM follow the statutory procedures under Part VIIC of the Immigration Ordinance, which were passed into law by the Legislative Council in July 2012 following its detailed scrutiny and came into effect in December 2012.

Under USM, claimants are provided with reasonable opportunities to establish their claims, including stating relevant details on a non-refoulement claim form and attending a screening interview. After assessment, the Department will inform the claimants of the Department’s decision and reasons in writing. Claimants aggrieved by the Department’s decision may lodge an appeal, which will be considered by the independent statutory Torture Claims Appeal Board/Non-refoulement Claims Petition Office (Appeal Board).

Throughout the screening process, claimants are also provided with all necessary professional assistance, including publicly-funded legal assistance, interpretation/translation services provided by qualified persons, and medical examination if the alleged physical or mental condition of a claimant is in dispute and relevant to the claim.

Overall Situation of Non-refoulement Claims

At the commencement of USM in March 2014, there were a total of 6,699 non-refoulement claims pending screening. As at the end of 2018, the Department had received a further 16,584 claims and determined 16,032 claims, among which 127 claims were substantiated (including 50 claims substantiated at the appeal stage), while 6,705 claims withdrawn, bringing the total number of claims pending screening to 546, which represented a substantial decrease of 91% as compared to 5,899 as at the end of 2017.

Comprehensive Review and Effectiveness

In view of the significant increase of claims lodged through illegal entry, overstaying and being refused permission to land at control points at the initial stage of USM implementation, the government commenced a comprehensive review of the strategy of handling non-refoulement claims in 2016. Various specific measures were introduced, including pre-arrival control against potential non-refoulement claimants, expediting the screening procedures, stepping up enforcement and removing unsubstantiated claimants from Hong Kong promptly, so as to tackle the issue of non-refoulement claims at root. The Department had been providing active support accordingly where measures implemented under the review continually achieved prominent results in 2018.

Pre-arrival Control against Potential Non-refoulement Claimants

To tackle the problems at source, the Department provided active support for the government’s review of the strategy for preventing illegal immigrants or doubtful visitors with higher immigration risk from coming to Hong Kong. At the initial stage of USM implementation, smuggling via the Mainland was one of the main ways for claimants to enter Hong Kong and the majority of them originated from countries not enjoying visa-free access to Hong Kong, including Vietnam, Pakistan and Bangladesh. The Department was very concerned about the situation, and had been cooperating with the Hong Kong Police Force and the Mainland authorities to step up enforcement action on boundaries, including liaison and intelligence exchange, and to keep up vigorous joint efforts against these illicit smuggling activities across the boundary and those criminal syndicates involved.

The Department noted that syndicates arranging entry of illegal immigrants into Hong Kong would change tactics from time to time, in routes to Hong Kong and in modes of operation. In this connection, the Department will continue to work closely with the local and Mainland law enforcement agencies in taking vigorous actions against illegal immigration activities, as well as in cracking down such syndicates.

Given that quite a number of claimants were visitors who arrived in Hong Kong by making use of the visa-free concession and overstayed afterwards, the Department had implemented the ‘Pre-arrival Registration for Indian Nationals’ with effect from January 2017, under which inbound visitors from India (one of the main source countries of claimants) are apply for and successfully complete registration online before they could visit Hong Kong visa-free. The measure had been operating smoothly which provided convenience for bona fide visitors while maintaining effective immigration control at the same time. As at the end of 2018, the number of Indian visitors overstaying in Hong Kong had dropped by over 80% as compared with that in 2016. In general, given the effectiveness of the pre-arrival control measures implemented, the number of non-refoulement claims received dropped by 34% from 1,843 claims in 2017 to 1,216 claims in 2018. The number had dropped significantly by 80% as compared with that of the peak period.

Screening Procedures

To enhance the workflow, the Department had introduced various measures within the existing legal framework, which included advanced scheduling of screening interview, building an objective, credible and timely updated database on relevant source countries to enhance the capability and efficiency of handling cases, and deploying dedicated officers to handle claims involving claimants from the same country so as to expedite the screening of claims. The average handling time for each claim had been shortened from about 25 weeks upon the launch of USM to about 10 weeks in 2018, while the successful rate of screening interviews had been increased from 61% in 2014 when USM was launched to 94% in 2018.

Meanwhile, the government had implemented the Pilot Scheme for Provision of Publicly-funded Legal Assistance for Non-refoulement Claimants since September 2017, running in parallel with the ‘Legal Assistance Scheme for Non-refoulement Claimants’ provided by the Duty Lawyer Service, so that the screening process could commence with a daily maximum of 23 cases, representing an increase of almost 80% in comparison with the daily maximum of 13 cases beforehand. With the various administrative measures to expedite the processing of claims, the Department determined 5,467 claims in 2018, representing a 31% increase as compared to 4,182 claims in 2017.

Moreover, the government is also studying amendments to the Immigration Ordinance in order to provide statutory underpinning to the procedures; to tighten the procedural timeframes and to prohibit delaying tactics, as well as to strengthen the Department’s powers in respect of enforcement, detention and removal, etc.

To better support the screening process, the Department provided interpretation service to claimants throughout the screening process. The Department hired in-house translators and interpreters mainly to provide interpretation support for claimants during briefing sessions and screening interviews, and to translate documents submitted by claimants. In addition, the Department would hire, on a case basis, part-time non-government interpreters registered with the Judiciary where necessary.

Detention

The Immigration Ordinance empowers the Department to detain persons pending the determination of non-refoulement claims and/or during the removal process. The exercise of such power must conform to the common law Hardial Singh principle, which states that a person cannot continue to be detained if the screening of non-refoulement claims or removal procedures cannot be completed within a reasonable period of time. As part of the comprehensive review, the government continued to consider ways to better support the management of detention facilities, on the account of legal, resources and public security implications, etc.

Removal and Enforcement

The Department is committed to removing all unsubstantiated non-refoulement claimants from Hong Kong as soon as possible. To this end, the Department had also expedited the removal process through, among others, maintaining close liaison with governments of major source countries, airline companies and other government departments. The Department conducted two large-scale removal operations by chartered flights in February and December 2018 respectively to effect repatriation of a total of 103 Vietnamese illegal immigrants. In 2018, a total of 4,006 non-ethnic Chinese were removed from Hong Kong (including about 2,500 whose non-refoulement claims were rejected, withdrawn, or could not be further pursued, or who returned voluntarily). The Department had also stepped up enforcement action against illegal workers and the employers involved, so as to reduce the economic incentives for illegal immigrants to stay in Hong Kong.

Close Collaboration with Authorities in Other Jurisdictions

In addition, the Department had all along been maintaining close liaison with major source countries of non-refoulement claimants. The Department had introduced Hong Kong’s stringent legislative provisions against illegal employment and human trafficking, as well as the objectives of the implementation of USM, explored co-operation with the local authorities on intelligence exchange and liaison on enforcement, and discussed ways to expedite the removal process through conducting duty visits to Vietnam, Pakistan and Bangladesh in the past. Should need be, the Department will continue to send delegates to the relevant major source countries to express concern over the situation of non-refoulement claims lodged by their nationals after having illegally remained in Hong Kong, while strengthening liaison, exchange of intelligence and co-operation with the law enforcement agencies in those countries. Moreover, closer communication with local consulates concerned would also be maintained to further expedite the removal of unsubstantiated claimants.

Litigation Support for Removal Assessment and Enforcement Litigation

A rejected claimant may lodge an appeal, which would be considered by the Appeal Board.

The Removal Assessment (Litigation Support) Section is mainly responsible for handling appeals lodged with the Appeal Board and the related judicial reviews.

The Enforcement Litigation Section handles civil litigation cases relating to removal and deportation, and claims for damages relating to detention.