CO129-604-6 Immigration- control over entry from China 1-1-1947 - 4-1-1950 — Page 108

HOTE BY SECRETARY OF STATE'S LEGAL

ONG KONG ORDINANCE NO. 4 OF 1949.

38 107

1. The suggestion was made in the previous note on the Ordinance that it might be useful to include in it provision for expulsion or deportation by the Governor of an imigrant whose present in the Colony is unlawful. In making this suggestion attention should have been dramı at the same time to paragraph 6 of the 1933 Report of the Departmental Committee in the Deportation of British subjects from the Colonies, eto. (a copy of which is attached) in which it is stated that a deportation order should in all cases be preceded by a judicial enquiry or Judicial proceedings. Normally this principle should be applied in immigration legislation as much as in deportation legislation although it was not so applied in the Kenya Ordinance No. 7 of 1948 to which reference ma made.

2. Again, in the previous note it was suggested that a provision on the lines of section 5 (3) of the Kenya Immigration Control Ordinance, 1948, (No. 7 of 1948) might be desirable. In fact, that provision must, unfortunately, be regarded as being in conflict with the spirit of paragraphs 5, 8 and 9 of the Report - particularly paragraph 8. To give an example of its possible operation, the case might be taken of a woman who, having been perfectly respectable at the time of her entry into the Colony, becomes a prostitute within the period of four years after her arrival. As her undesirable habits had been acquired after arrival, the Colony should, after a period, be regarded as being responsible for her see paragraph 8 of the Report, above quoted.

Section 5 (5) of the Kenya Ordinance should therefore not be taken as a model,

3. In Section 2(1)(a), after the words "British protected person" there should be inserted the words ".. (as defined in the British Nationality Act, 1948).* It is also considered that there should be inserted, as subsection (4) of Section 2, the following :-

bo

"(4) This Ordinance shall have effect in relation to citisens of the Republic of Ireland who are not British subjects in like manner as it has effect in relation to British subjects."

In paragraph 3 of the 1933 Report it is laid down as a general principle that British subjects who "belong" to a territory should not be refused admission to it; and, further, the classes of British subjects who are to be regarded as "belonging" to a territory are defined. It is however observed that in the Hong Kong Ordinanos, the combined effect of the definition of "immigrant" in Section 2(1)(d) and the provisions of Section 11(1) is that any

| British subject who should, according to the principle of the Report

be regarded as "belonging" to Họng Kong, by reason of his coming within any one of the classes set out in (a), (b) and (c) of paragraph thereof other than the class which "belongs" by reason of birth in Hồng Kong, might, if he also came within any one of the various categories specified in Section 11 (1), be refused admission.

5. The provision in Section 33 (1) is of the type to which attention was draw in the Circular Despatah of the 13th December, 1948, and is, accordingly, open to objection.