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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.
Organisation Chart of the Removal Assessment and Litigation Branch
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 for the government's comprehensive review of the strategy of handling non-refoulement claims, handles appeal/petition and litigation cases relating to non-refoulement claims and enforcement, and formulates and implements measures in respect of deportation and removal of unsubstantiated non-refoulement claimants.
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.
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.
All case officers responsible for screening non-refoulement claims are required to attend professional training courses before assuming their duties. To tie in with the social distancing measures during the COVID-19 pandemic, the training has been held by video conferencing.
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 (HKBOR), 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 ensure that case officer has sufficient knowledge to process the cases and be familiarised with the relevant legal procedures, the department provided legal reference books on the latest local and overseas jurisprudence for reference.
To fulfill its obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the HKBOR 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 statutory and independent 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 (PFLA), 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.
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 of 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 and measures implemented under the review continued to achieve results in 2020.
The department has all along been providing active support for the government's review of the strategy. In 2020, owing to flight or other restrictions imposed by some countries or regions in the midst of the COVID-19 pandemic, the number of doubtful visitors with higher immigration risk reduced considerably.
Besides, 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 '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) were required to 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. In 2020, the number of inbound visitors from India declined substantially in the midst of the epidemic. As at the end of 2020, the number of Indian visitors overstaying in Hong Kong had dropped by 84 per cent as compared with that in 2016.
Overall, the number of non-refoulement claims received in 2020 was 1,223 claims, which was similar to 1,213 claims in 2019. The number had dropped significantly by around 80 per cent as compared with that of the peak period. However, there were increases in the numbers of new claims received and non-ethnic Chinese illegal immigrants intercepted in the second half of 2020. The government will closely monitor the situation. The department will also continue to work closely with the local and Mainland law enforcement agencies to take vigorous action against illegal immigration activities, and crack down on syndicates of trafficking in illegal immigrants.
To enhance the workflow, the department had introduced various measures within the existing legal framework, which included advanced scheduling of screening interviews, 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. In 2020, the average handling time for each case was about 10 weeks. From the commencement of the USM in March 2014 to the end of 2020, excluding the outstanding 6,699 claims pending screening at the beginning, the department received a further 19,020 claims. During this period, we determined 18,233 claims, among which 219 claims were substantiated (including 134 claims substantiated at the appeal stage), together with the 6,923 claims withdrawn, bringing the total number of claims pending screening to 563. In 2020, the screening of claims was affected by the COVID-19 pandemic. Due to the special work arrangements during the epidemic, only limited PFLA could be provided to claimants, which delayed the commencement of the screening procedures of some claims. As at the end of December 2020, apart from 563 claims pending completion of screening by the ImmD, there were around 700 claims of which the screening procedures had yet to commence due to the epidemic.
The department had established a database on information such as localities, reports of topical issues and details of major events of the source countries of claimants to facilitate the screening of claims.
With the assistance of an interpreter, a case officer is conducting a screening interview with a non-refoulement claimant in the presence of a legal representative.
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. As at the end of December 2020, the ceiling of the PFLA was 8 cases per day. In light of the actual circumstances, the government will further increase the PFLA quota in 2021-22.
Moreover, the government introduced the Immigration (Amendment) Bill 2020 to the Legislative Council in December 2020 with a view to improving the screening procedures for non-refoulement claims and to introducing enhanced measures in respect of law enforcement, removal and detention.
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 where necessary.
The department hires 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.
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 will continue to consider ways to better support the management of detention facilities, on the account of legal, resources and public security implications, etc.
The department has all along been committed to removing unsubstantiated non-refoulement claimants from Hong Kong as soon as practicable in accordance with prevailing laws and policy. To this end, upon reorganisation of the Removal Assessment and Litigation Division in May 2019, a new sub-division designated for removal proceedings against unsubstantiated non-refoulement claimants was formed with a view to optimising operational efficiency. The department had expedited the removal process through, among others, maintaining close liaison with governments of major source countries, airline companies and other government departments. In 2020, flight or other restrictions were imposed by some countries or regions in the midst of the COVID-19 pandemic. Nevertheless, the department endeavoured to maintain close liaison with governments of major source countries, airlines companies and other government departments to tie in with the special arrangements implemented during the epidemic, including the removal of unsubstantiated non-refoulement claimants to their places of origin by special flight. In 2020, a total of 1,384 non-ethnic Chinese were removed from Hong Kong (including over 600 whose non-refoulement claims were rejected, withdrawn or could not be further pursued, or who returned voluntarily).
In recent years, the department has conducted a number of large-scale special removal operations by chartered flights to effect the repatriation of illegal immigrants.
In addition, the department had all along been maintaining close liaison with major source countries of non-refoulement claimants, and exchanging intelligence and co-operating with the law enforcement agencies in those countries. Despite the epidemic, closer communication with local consulates concerned would continue to be maintained so as to further expedite the removal of unsubstantiated claimants.
A rejected claimant may lodge an appeal, which would be considered by the Appeal Board.
There are designated sections under the Removal Assessment and Litigation Branch responsible for handling appeals lodged with the Appeal Board and the related judicial reviews, civil litigation cases relating to removal and deportation, and claims for damages relating to detention.