CONFIDENTIAL
110412
MDLIAN 0194
RESERVATION, WE FACE THE PRACTICAL PROBLEM OF APPLYING IT TO HONG KONG'S CIRCUMSTANCES, WHERE EACH OF THE 44,000 VBP NOW DETAINED HERE IS AN INDIVIDUAL PERSON DESERVING CAREFUL CONSIDERATION AS TO REFUGEE STATUS. IT IS QUITE CLEAR THAT PART IIIA OF THE IMMIGRATION ORDINANCE (CAP 115), WHICH IS CONCERNED EXCLUSIVELY WITH VBP, IS AN INTEGRAL PART OF HONG KONG'S IMMIGRATION LEGISLATION IN THE CONTEXT OF THE RESERVATION TO THE ICCPR. IT IS UNDER THAT PART OF THE LEGISLATION THAT VBPS ARE DETAINED.
6. THEREFORE, GIVEN THE SPECIAL CIRCUMSTANCES OF HONG KONG ASSOCIATED, INTER ALIA, WITH THE SIZE OF THE VBP POPULATION HERE, THE SMALL SIZE OF THE TERRITORY AND THE EVER-INCREASING IMPORTANCE OF MAINTAINING SOCIAL STABILITY IN THE YEARS AHEAD WE BELIEVE HMG WOULD BE JUSTIFIED, AT THE INTERNATIONAL LEVEL, IN TAKING A ROBUST STANCE ON THE SCOPE OF THE RESERVATION IN THE CONTEXT OF HONG KONG. IF IT CAN BE DEMONSTRATED THAT THE SIZE OF THE PROBLEM MAKES IT IMPOSSIBLE FOR HONG KONG ADEQUATELY TO SCREEN VBP AS INDIVIDUALS WITHIN LESS THAN 2 YEARS IT FOLLOWS, IN OUR VIEW, THAT IT WOULD BE A JUSTIFIABLE AND PROPER POSITION FOR HMG TO TAKE ON BEHALF OF HONG KONG THAT ITS RESERVATION IN REGARD TO HONG KONG COVERS THE NEED FOR DETENTION FOR SUCH A PERIOD.
7. HOWEVER THIS LEAVES OPEN THE QUESTION OF WHAT PERIOD OF DETENTION WOULD BE LAWFUL UNDER HONG KONG LAW. IN THIS CONNECTION THE RECENT RULING OF SEARS J. IN THE HABEAS CORPUS APPLICATION BY 111 VBP FROM BOAT 101, THAT 18 MONTHS DETENTION WAS UNREASONABLY LONG, COULD APPLY TO OTHER VBP DETAINED UNDER SECTION 13D(1) OF THE IMMIGRATION ORDINANCE.
8. TO SOLVE THIS PROBLEM WE ARE CONSIDERING WHETHER TO INTRODUCE LEGISLATION PROVIDING FOR DETENTION FOR PERIODS LONGER THAN 18 MONTHS. HOWEVER WE ARE CONCERNED TO ENSURE THE CONSISTENCY OF SUCH LEGISLATION WITH THE RELEVANT PROVISION OF THE ICCPR AS AFFECTED BY THE UK RESERVATION.
9. AS YOU WILL APPRECIATE, THIS MATTER IS OF SOME URGENCY BOTH ON THE BOR AND THE VBP FRONTS. WE SHOULD THEREFORE BE GRATEFUL FOR YOUR EARLY VIEWS ON THE ABOVE, PARTICULARLY PARAGRAPHS 6 AND 8.
WILSON
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