Right to Work for Refugees in Hong Kong: A Constitutional Study

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By LAM Man Ka, CHAN Evelyn, LI Yu Ting, and CHAN Ho Hin Jacky, LLB students at the Chinese University of Hong Kong (CUHK)

Refugees deserve more attention in Hong Kong. Source: Asia Times/Handout

Refugees,  asylum seekers and torture claimants  constitute  less  than one percent of Hong Kong’s (HK) population.[1]

However, the law imposes extensive restrictions on their right to work and provides inadequate protection for other socio-economic rights. This essay examines refugees’ right to work in HK from a constitutional perspective.   

The constitutionality of executive decisions restricting refugees’ right to work has been a controversial issue in HK. The readiness of HK courts to comply with international treaties such as the International Covenant on Civil and Political Rights (ICCPR) is evident in R v Sin Yau-ming (1991).[2]  Nevertheless, the courts have been reluctant to acknowledge the right to work as a constitutional right, even though this is a fundamental socioeconomic right in the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 39(1) of the Basic Law (BL) provides that both the ICCPR and the ICESCR “shall be implemented through the laws” of the HKSAR.[3] As derived from our interview with Annie Li (Research and Policy Officer, Justice Centre Hong Kong), the reason for this is grounded in HK’s dualist approach to international law. Ribeiro PJ’s judgment in Ubamaka Edward Wilson v Secretary for Security & Anor demonstrated the dualist legal tradition, as he concluded that ratified international treaties are not legally binding if not translated into domestic law.[4] Thus, GA v Director of Immigration, which cited  Ubamaka, explicitly  states  that  the  right to work under Article 6 of the ICESCR is not enforceable.[5]  

Michael Ramsden, a professor at the Chinese University of Hong Kong Faculty of Law, argues that BL Article 39(1) is merely a “constitutional guarantee” that ICESCR would continue to be effective after the Handover of sovereignty from the U.K. to the PRC and that domestic legislation incorporating ICESCR would be conferred with constitutional status.[6] While we partially agree with this claim, Ramsden’s interpretation of the provision is limited. Since BL Article 8 already fulfills the purpose of ensuring “laws previously in force” will continue to be in effect, BL Article 39(1) would be redundant in practice if Ramsden’s interpretation was authoritative.[7 In order to move beyond this narrow interpretation, we would like to assert that the use of future tense “shall” implies that the Legislative Council has a constitutional obligation to implement ICESCR into local law. But legislators have yet to integrate ICESCR into domestic legislation holistically.[8] 

The ambiguity surrounding the legal status of the ICESCR in Hong Kong further deprives refugees of their fundamental rights. In  Mok Chi Hung  v  Director of Immigration, Cheung J stated that the ICESCR should merely be used as a “framework” for the executive’s decision-making.[9]  Although it is a constitutional requirement for policies and legislation to be sufficiently clear and accessible to the public under the “prescribed by law” principle in BL Article 39(2), the government could potentially restrict rights without proper justification if the ICESCR is only treated as a reference document. Hence, we argue that the partial implementation of the ICESCR is unconstitutional due to the uncertainty in the law, as refugees, among other vulnerable groups, would not be able to understand which rights actually apply to them. In  Chan To  Foonv Director of Immigration, the Court of  First Instance stated that ICESCR is “aspirational” and not legally binding.[10]  However, there have been examples where the ICESCR has been implemented in executive decisions, such as facilitating a minimum living standard and providing social welfare through the Social Welfare Department’s Humanitarian Assistance  Programme. This suggests that rights under the ICESCR are not entirely “aspirational” in nature. Therefore, refugees’ right to work may also be incorporated under the current legal framework for socio-economic rights.   

When juxtaposed to the idealism shown in ICESCR (which states that everyone should enjoy the right to work), a potential  solution would be to incorporate the  Convention Relating to the Status of the Refugees into domestic legislation, as it explicitly states that refugees should enjoy the right to work. However, this is not realistic in the context of HK. According to BL Article 151, the HK government has no authority to “implement agreements on its own” with “international organizations” for human rights.[11]  This is because the types of agreements stated within the exhaustive list of the BL do not mention human rights. Taking this limitation into account, it is only reasonable to further investigate solutions concerning the right to work from different ways of implementing the ICESCR.   

One possible solution would be to integrate the ICESCR into local legislation, which would bestow the domestic law with a constitutional status. The language of the domestic law incorporating ICESCR should be amended by the legislature to precisely define the rights, allowing it to be reasonably foreseeable and legally enforceable. Under these circumstances, all legislation enacted by the legislature and administrative decisions made by the executive must correspond to the BL. Otherwise, they would be  ultra vires  and declared invalid under the doctrine of constitutional supremacy.  

Another possible solution would be to emulate the approach taken by courts of the United Kingdom (UK), which also follow the dualist legal tradition. When interpreting legislation, British courts assume that legislation is not intended to contravene the UK’s duty to comply with ratified international treaties. Thus, even though the ICESCR is not incorporated into UK domestic law, legislators must take its provisions into account when passing laws.[12 HK courts (under the BL Article 84) could apply this assumption by using the British case  Litster  v Forth Dry Dock & Engineering Co. Ltd.[13]  as persuasive authority. This would ensure consistent application of the ICESCR and grant refugees natural justice when claiming their rights.   

Currently, statistics on the number of refugees granted the right to work and information on the process of executive decision-making are not public. Thus, we suggest that the public should be able to hold the government accountable and ensure that the executive adheres to the relevant laws, particularly when the Director of Immigration’s exercises discretionary power in giving refugees permission to be employed. This can be achieved by increasing the transparency of the procedure. Regardless of the solution adopted, refugees should receive basic protection of their right to work to ensure that they will have a reasonable standard of living.  

The views expressed in this post are the author’s own and do not necessarily reflect Justice Centre’s stance. 

References:

  1. Facts. (n.d.). Retrieved from http://www.justicecentre.org.hk/facts/.
  2. R v Sin Yau-ming (1991) 1 HKPLP 88, [1992] 1 HKCLR 127.
  3. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  4. Ubamaka Edward Wilson v Secretary for Security & Anor [2013] 2 HKC 75.
  5. GA v Director of Immigration (2014) 17 HKCFAR 6.
  6. Using International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation. Common Law World Review (2013)Retrieved from http://journals.sagepub.com/doi/abs/10.1350/clwr.2013.42.4.0259.
  7. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  8. Using the ICESCR in Hong Kong Courts. Hong Kong Law Journal(2012). Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2160777.
  9. Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 125.
  10. Chan To Foon v Director of Immigration [2001] 3 HKLRD 109.
  11. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  12. Judicial Committee on Human Rights of The House of Commons (2004) The International Covenant on Economic, Social and Cultural Rights Twenty-first Report of SessionRetrieved from https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/183.pdf (27 March 2018.
  13. Judicial Committee on Human Rights of The House of Commons (2004) The International Covenant on Economic, Social and Cultural Rights Twenty-first Report of Session. Retrieved from https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/183.pdf (27 March 2018 ).

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