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The Removal Assessment and Litigation Branch, established in June 2016, oversees the Removal Assessment and Litigation Division. 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.
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.
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 2021 professional training courses has been conducted simultaneously at the Immigration Service Institute of Training and Development and the offices of Removal Assessment and Litigation Division by adopting the video conferencing technique.
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'.
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.
To fulfil 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 the 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 the 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.
At the initial stage of implementation of the USM, in view of the significant increase of claims lodged through illegal entry, overstaying and being refused permission to land at control points, the government commenced in early 2016 a comprehensive review of the strategy of handling non-refoulement claims, with focus on the following areas: reducing at source the number of non-ethnic Chinese illegal immigrants and overstayers who may lodge non-refoulement claims in Hong Kong; expediting the screening of claims and appeals under the USM; expediting the repatriation of claimants whose claims and appeals (if any) have been rejected; and stepping up law enforcement (including against crimes such as unlawful employment) and detention arrangements. The department had been providing active support accordingly and measures implemented under the review continued to achieve results in 2021.
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 2021, the average handling time for each case was about 10 weeks. From the commencement of the USM in March 2014 to the end of 2021, excluding the outstanding 6,699 claims pending screening at the beginning, the department received a further 21,548 claims. During this period, we determined 20,453 claims, of which 257 claims were substantiated (including 168 claims substantiated at the appeal stage), together with the 7,053 claims withdrawn, bringing the total number of claims pending screening to 741. While the overall landscape of non-refoulement claims had been stable since 2019, the screening of claims was affected by the Coronavirus Disease 2019 (COVID-19) pandemic. Due to the special work arrangements implemented during the pandemic, the provision of PFLA to claimants was interrupted and the commencement of the screening procedures was hindered. There was also an increase in the number of new claims received. In June 2021, the number of new claims pending screening by the department rebounded to about 1,500. With the department's vigorous efforts and the gradual increase in PFLA quotas, the department processed a total of 2,220 non-refoulement claims with decisions in 2021. The number of claims pending screening by the department was brought down to 741 as at the end of December 2021.
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. To cope with the increase in the number of new claims received due to the COVID-19 pandemic, the government had timely increased the capacity for handling PFLA cases. the ceiling of the PFLA quota had been increased from about 5 cases per day before the pandemic to 16 cases per day in November 2021.
To better support the screening process, the department provides interpretation service to claimants throughout the screening process. 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. 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 removal. 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. Despite the impact of the pandemic on the operation of international flights, the department had endeavoured to effect repatriation through, among others, close liaison with governments of major source countries of claimants, airline companies and other government departments for issuing travel documents for the return of unsubstantiated claimants and for repatriation flights. In 2021, a total of 753 non-refoulement claimants were removed from Hong Kong. In this regard, in November 2021, the department repatriated to Vietnam 40 Vietnamese illegal immigrants and overstayers, including 36 unsubstantiated non-refoulement claimants.
The department repatriated to 40 Vietnamese illegal immigrants and overstayers to Vietnam through a special flight.
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.
The Immigration (Amendment) Ordinance 2021 ('Amendment Ordinance') has taken effect from 1 August 2021, providing solid legal backing for measures in respect of removal, detention, interception at source and law enforcement, etc., and further improving the handling of non-refoulement claims, including enhancing the department's efficiency in screening, preventing delaying tactics, and stepping up interception at source, law enforcement, removal as well as detention of claimants, etc.
The department will continue to follow through the enhancements made under the Amendment Ordinance to ensure the smooth operation of the USM, the efficient handling of the outstanding claims, appeals and relevant litigations, as well as the expeditious removal of unsuccessful claimants.
The Immigration (Amendment) Ordinance 2021 has taken effect from 1 August 2021, providing solid legal backing for measures in respect of removal, detention, interception at source and law enforcement, etc., with a view to further improving the handling of non-refoulement claims.