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Hong Kong: Dispute over Policy on Influx of Mothers from China Giving Birth in Hong Kong

(Feb. 16, 2012) Leaders in Hong Kong have disagreed recently on how to handle the problem of expectant women from mainland China entering the city in an attempt to have their children born there, in order to qualify for the right of abode. Some lawmakers have suggested that the Basic Law, the constitution-like statute under which Hong Kong operates within China as a Special Administrative Region (SAR), should be amended to handle the matter. Article 24 of the Law states that Hong Kong permanent residents include all those born in the jurisdiction, “before or after the establishment of the Hong Kong Special Administrative Region.” (Basic Law (adopted Apr. 4, 1990, in effect from July 1, 1997), Hong Kong Government website (last updated Dec. 3, 2010); Tsang Goes for Mom Curbs, THE STANDARD ONLINE (Feb. 10, 2012), World News Connection online subscription database, Doc. No. 201202101477.1_26d0006d3beded88.)

The cases now attracting attention are those of babies born in the SAR who are considered “doubly unqualified,” meaning that neither parent is a legal, permanent Hong Kong resident. (Joseph Li, Basic Law Amendment, Only If All Else Fails, CHINA DAILY.COM (Feb. 10, 2012).)

Hong Kong's Chief Executive, Donald Tsang, has argued that changing or re-interpreting the Basic Law should be considered only as a last resort and that administrative actions should be tried first. Speaking on February 9, 2012, he said:

Seeking an amendment to the Basic Law is a dramatic move and the SAR has not ever moved to amend it before. … Such a step will not address immediate concerns over a shortage of obstetric beds in public hospitals. Interpreting the Basic Law is also an extreme move. We will consider resorting to these extreme measures only if our administrative measures cannot solve the problem. (Tsang Goes for Mom Curbs, supra.)

Tsang has also referred to a 2001 Court of Final Appeal decision that gives the right of citizenship in the Hong Kong SAR to infants born to doubly unqualified couples, noting that the decision is binding. (Li, supra; The Director of Immigration v. Master Chong Fung-Yuen, Final Appeal No. 26 of 2000 (Civil), decided July 20, 2001, Legal Reference System.)

Tsang described a pattern in which agents assist expectant parents in illegally crossing the border into Hong Kong, for a fee. He called for efforts to stop these agents and said that the measures adopted in 2011, including quotas for mainland Chinese residents at Hong Kong hospitals, have already reduced the number of cases in which mainland Chinese give birth in the city. (Li, supra; Tsang Goes for Mom Curbs, supra.)

Arguing for more immediate attention to the possibility of changing the Basic Law, legislator Gary Chan Hak-kan of the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) has said that:

The existing administrative measures are not really effective as there are still a large number of expectant mainlanders who are gate-crashing emergency wards. … More are still eager to flock to local private hospitals to give birth although the government has limited the quota for non-locals. It seems that such a situation will remain in the short term and the government should be well-prepared for the possibility of either seeking an interpretation or amending the Basic Law. (Tsang Goes for Mom Curbs, supra.)

While Civic Party member Audrey Eu Yuet-mee said immigration officials should improve border checks in order to send home pregnant women from mainland China who have not reserved slots at hospitals in Hong Kong, Ip Kwok-him, a lawmaker from DAB, suggested that if the current steps fail to change the current situation sufficiently, Hong Kong should take the matter to the Standing Committee of the National People's Congress. That Committee has the ultimate power to interpret the Basic Law and could review, Ip argues, whether the true legislative intent was to give the right of residency to everyone born within the Hong Kong SAR. (Id.)