Foz & Ors v Director of Immigration [2025] 2 HKC 766, [2024] HKCFI 3504 (Peter Barnes)
Peter Barnes acted for the applicants in Foz & Ors v Director of Immigration [2025] 2 HKC 766, [2024] HKCFI 3504.
The applicants were members of a Coptic Christian family of Egyptian origin, being the adult parents and their four children. They were illegal immigrants, having no permission to remain in Hong Kong. Save for the 6th applicant (the youngest child), they were all subject to removal orders made under s 19 of the Immigration Ordinance (Cap 115). A removal order against the 6th applicant was also under contemplation of the respondent, the Director of Immigration. The applicants had lodged non-refoulement claims which the respondent considered to have substantiated. However, the United Nations’ High Commissioner for Refugees sub-office in Hong Kong had declined to recognize the applicants as refugees under its mandate, and would not assist with finding a durable solution by way of their resettlement in another country. It was the applicants’ case that as a result, they could not and would not be returned to Egypt, but they would not be resettled elsewhere; they were in effect stuck in Hong Kong and remained subject to the conditions of recognizance imposed upon them. They applied for judicial review to challenge the respondent’s decision not to rescind the removal orders against them.
Held, dismissing the judicial review, that:
(1) The applicants were illegal immigrants. They were therefore subject to the exercise of the power granted under s 19(1)(b) of the Immigration Ordinance (Cap 115) and the making of removal orders against them lawfully in accordance with that power. As subjects of removal orders, the applicants were liable to detention pending removal under s 32(2A) of the Ordinance. If they were not detained, that is, if the power to detain them was not exercised, they could be granted the alternative release on recognizance under s 36 of the Ordinance. The making and the substantiation of the non-refoulement claims had no effect on the immigration status of the applicants. The Hardial Singh principles dealt with the power to detain, not its existence. Hence, where there was no detention, those principles had no relevant application. Further, ordering release upon a habeas corpus application would not affect that the existence of the power to detain, but would be on the basis that the exercise of that power was precluded in the then pertaining circumstances. Those circumstances may change. That is, the applicants would remain liable to detention pending their removal. In any event, the existing of the removal orders had nothing to do with the possibility of the grant of permission to enter and remain in Hong Kong. GA v Director of Immigration [2014] 3 HKC 11, (2014) 17 HKCFAR 60 applied (paras 25, 49-55).
(2) There was a long-standing policy of not granting asylum to any non-refoulement claim claimants or determining any person’s refugee status. There was also the policy of not admitting any claimants whose non-refoulement claims were substantiated as residents in Hong Kong, which had been codified into s 37ZY of the Immigration Ordinance. However, for persons who did not have the right of abode and the right to land in Hong Kong, but who wished to apply for the grant of permission to stay or remain in Hong Kong – including non-refoulement claim claimants (whether their claims were substantiated or not) – there were various specific immigration policies to be given effect by the respondent to deal with different categories of persons. These policies allowed persons in different categories to come to Hong Kong for immigration purposes including working, studying, establishing or joining in any business, taking up residence as resident or remaining as visitors (paras 26-27).
(3) Once it was understood that the existence of the removal orders was no bar to the making of an application to enter and remain in Hong Kong as resident on any available basis, then the premise underlying the ground of alleged unlawful fettering of discretion fell away. Hence, the applicants could apply for permission to enter and remain in Hong Kong on any of the established bases for the grant of a visa or on the basis that the discretionary consideration of humanitarian and compassionate grounds should lead to the exceptional grant of permission to enter and remain. In the correspondence prior to the present proceedings, the respondent did not suggest that the applicants were not eligible even to make any such application. On the other hand, it appeared that no formal application had actually be advanced (paras 58-66).
[The above is excerpted from the headnote to the report in HKC.]
