Families Hope to Reunite Under Hong Kong Residency Rule

Imagine a land that can be home to parents but not all of their offspring. A place that welcomes a man’s child by one woman but not by another. A legal residence for a couple but not their adopted baby.

That was the situation in Hong Kong before a recent landmark court decision that has become the most significant test yet of the laws that allow this former British colony a degree of autonomy from its new masters in Beijing.

On one level, the “right of abode” case is about constitutional law and the ability of an already overcrowded territory to absorb new immigrants. But on a more compelling level, it is about divided families.

“It is all about family reunions,” said Pam Baker, one of the lawyers who represented family members before the Court of Final Appeals. “It is about acknowledging the fact that chaps do go across the border and marry Chinese girls.”

The final impact of the Jan. 29 decision might not be known for months as related cases climb their way through the court system. Sometime this summer, for example, the Court of Final Appeals will review a recent ruling by a lower court requiring offspring of Hong Kong residents to apply to Chinese authorities first, before moving to the territory.

This would effectively hand China the final say on who comes here from the mainland. But Judge Wally Yeung said it was necessary because “an unverifiable, unplanned and unregulated large influx of new immigrants to Hong Kong will be an unbearable burden. It may sink Hong Kong.”

No Room for ‘Unwelcome Guests at the Banquet’

With Hong Kong still mired in recession, the “right to abode” issue has spawned virulent anti-immigrant sentiment here. Although most of Hong Kong’s 6.6 million residents are descendants of immigrants and refugees from mainland China, many have decided that there is no room for newcomers. In this respect, the controversy here has parallels with the anti-immigrant movement in the United States, another country founded by newcomers.

“It is a harvesting period of the Hong Kong people to share the wealth and prosperity, to slaughter pigs and kill sheep, and to eat and drink,” the influential Chinese-language Oriental Daily News wrote in an editorial. “This is not a time when we need a large number of unwelcome guests at the banquet.”

One prominent politician, Liberal Party Vice Chairman Ronald Arculli, even suggested that the territory build “outposts” to house the new immigrants in the neighboring cities of Shenzhen or Macao to relieve the “burden” they posed for Hong Kong.

Estimates of the number of potential new immigrants created by the court ruling range wildly from 300,000 to more than 3 million. Social workers and lawyers who support the immigrants claim the lower number is closer to the truth. Officials in China, furious over the independent court decision they believe threatens to change the demographic complexion of their new prize territory, say the higher number is more realistic.

Even Elderly Mainland Offspring Qualify

The reason for the uncertainty is that the Court of Final Appeals put no time or age limit on its ruling. Under the broadest interpretation, that means even elderly mainland offspring of Hong Kong residents would be entitled to live here. An estimated 60% of the mainland-born offspring are more than 20 years old.

Most have children of their own, who also would qualify for residency under the ruling. Baker, who is a veteran of many civil rights legal fights here, said she has one client who is 70 years old, the daughter of a Hong Kong permanent resident who is 90.

The Hong Kong Census and Statistics Department, in cooperation with mainland authorities, is conducting a poll of “Hong Kong residents with spouses/children in the mainland of China” to come up with an estimated number and present a report by July.

Meanwhile, in the Hong Kong media and even in official government reports, recent immigrants from China are being blamed for practically every urban ailment, including pollution, crime and the struggling economy. The clear suggestion is that when the anticipated “flood” of new immigrants comes to Hong Kong as a result of the court ruling, these problems will only get worse. Even though Hong Kong is now officially part of the Chinese motherland, authorities here have committed $42 million to reinforce the 20-mile border fence and add closed-circuit television cameras.

The anti-immigrant sentiments are especially troubling to Fung Ping-cheong, a 50-year-old home-improvement contractor who migrated here from the mainland in 1981.

“I don’t care what the media says,” Fung said, his broad shoulders shaking with rage during a recent interview. “I came here and worked. I made it, and all I really want is to keep my family together. No one can tell me we are not good enough to take up space here.”

Fung, who owns his own small apartment in a government-subsidized housing project, is a legal resident of Hong Kong, along with his wife and two grown sons. But for years he tried to get permission for his daughter, Fung Bik-yan, a 26-year-old unmarried teacher, to join the family here.

When the family began migrating here in stages in the early 1980s, negotiating through tricky quota systems on both sides of the border, the daughter was left behind with her uncle to attend primary school in their rural community outside Zhongshan in neighboring Guangdong province. But when her parents made the move to bring her into Hong Kong, they found their way blocked by mainland and British authorities.

In February 1997, about five months before Hong Kong was returned to Chinese rule, the daughter came here on a visitor’s visa. She remained in Hong Kong after the visa expired, claiming that she was entitled to permanent residency under the Basic Law, Hong Kong’s mini-constitution.

Under a Hong Kong government ordinance, the woman was not entitled to legal residency because she had entered the territory on a “two-way” visa. But in its Jan. 29 judgment, written by Chief Justice Andrew Li Kwok-nang, the five-judge panel ruled that the ordinance was unconstitutional.

It didn’t matter how the people got to Hong Kong, the judges ruled, even if they entered the territory illegally. Fung Bik-yan, the court ruled, would be allowed to stay because her right of abode is guaranteed by the Basic Law.

The woman, the only member of her family with a university education, has been working for the past year as a volunteer teacher in a community center, instructing immigrant children.

Key to the court ruling is Article 24(3) of the Basic Law, the document hashed out by British and mainland officials before the hand-over and approved by the National People’s Congress in Beijing, that grants the right of permanent residency to anyone with at least one parent who is a permanent resident.

This article is much broader than those under British rule, a fact that appears to have been missed by the Hong Kong government despite warnings by legal scholars that it could lead to problems.

In fact, the article’s drafters were trying to correct an inequity that existed before the hand-over to China.

Under colonial law, a person was required to have been born in Hong Kong or hold a British passport to obtain automatic residency. Thus, about 60% of Hong Kong’s population--holders of British or special British National Overseas passports--enjoyed the right of abode for all their offspring; the other 40%, mostly more recent immigrants, did not.

It is the offspring of this group, newly endowed with the right of abode under the Basic Law, that is at the center of the controversy.

Under British rule, for instance, Law Wing-sing would not have the right of abode in Hong Kong. Wing-sing is a bright-eyed, mischievous 5-year-old pupil at Regents Kindergarten across the border in Shenzhen.

Wing-sing was born in Shenzhen to a Chinese mother. But his father is a Hong Kong construction worker. Because of the judgment, the boy now meets the conditions for Hong Kong residency.

“We are going to apply for him,” said his 27-year-old mother, Lao Sui-ngo. “If he gets in, I might have a chance.”

Children Are Entitled, but Their Mother Isn’t

An official at Wing-sing’s school said about 70% of the 500 pupils are children of Hong Kong fathers. The court ruled that the article also applies to children born out of wedlock and even to children born before their parents obtained residency. However, China early last month sent signals that it intends to fight this, vowing not to let children born out of wedlock leave the mainland for Hong Kong.

This summer, Baker, the attorney, will represent the mother of two children who are entitled to residency, but who does not have residency herself. The Basic Law does not speak to the issue of these mothers. “We will have to appeal to the court on humanitarian grounds,” Baker said. Another anticipated case concerns adoptive parents.

There is a residential section of Shenzhen, only one hour away from the Hong Kong central business district by train, that is famous for the many young women--wives and mistresses of Hong Kong men--who are in the same situation: mothers of young Hong Kong residents who are not entitled to residency themselves.

One 30-year-old, who asked that she be identified only by her surname, Luo, lives in a one-bedroom apartment on Phoenix Road in the Wong Bu Lang neighborhood. Her sister lives upstairs. Both women have Hong Kong husbands.

Luo said she met her husband when she was working as a receptionist at a hotel in Shenzhen. They dated for a year and married in Hong Kong. Five years ago she traveled to Hong Kong and gave birth to their son, making him automatically a Hong Kong resident under British law.

The couple have tried for years to obtain residency in Hong Kong for Luo. The husband, who works in Hong Kong, manages to visit three or four times a week.

Next fall, she said, they face a crucial decision. The husband has applied for the boy to attend elementary school in Hong Kong. “It’s horrible,” she said. “The kids get to go, but the mothers must stay behind.”