CODE 18-77]
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Reference
3.
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Incompatibility of existing law and practice with the ICCPR
Mr Haswell has requested further explanation as to why legal advisers, now and in 1982, should have taken the view that HK's closed camp policy is incompatible with HMG's obligations unde the ICCPR.
The main difficulties arise under Article 9, paragraph (1) of which provides that "no one shall be subjected to arbitrary arrest or detention". It is not in my view incompatible with this Article to have a law which provides for detention of illegal immigrants pending determination of status or deportation. But it should not be the general rule that such persons are detained for prolonged or indefinite periods without regard to their individual circumstances. This is clear from the fact that paragraph (3) provides that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody... It would be difficult to argue that VBP are entitled to lesser safeguards than persons charged with crime.
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Mr Burrows, advised (in his minute of 14 September 1982 to Mr Hoare, HK & GD) that in order to remedy the current breach of Article 9 the law ought to be amended so as to spell out the criteria for ordering a VBP to be imprisoned in a closed camp.
It ought further to give a right to take proceedings before a court which would be entitled to consider whether those criteria had been satisfied in any particular
The kinds of grounds on case (as required by Article 9(4)). which a VBP could properly be kept in detention are, eg that he or she would, if left at liberty, be likely to abscond, commit crime, be a threat to public order, public security or public morals. The present HK Immigration Ordinance however permits detention of all VBP pending screening or deportation, without requiring any grounds to be shown.
If the kind of amendment suggested by Mr Burrows were to be made in order to ensure compliance with Article 9, it would follow that all VBP to whom the specified criteria did not apply would have to be permitted to live in open camps, albeit subject to some degree of control, such as regular reporting
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