TNAG-0318-FCO40-354-Legislation-for-immigration-and-deportation-in-Hong-Kong-1971 — Page 118

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CONFIDENTIAL

TO IMMEDIATE GOVERNOR HONG KONG TELEGRAM NO. 628 OF 31 AUGUST.

YOUR TELEORAM NO 583.

IMMIGRATION BILL

1. MINISTERS HAVE NOW CONSIDERED THE TERMS OF THE BILL AND HAVE

AGREED TO ITS ENACTMENT SUBJECT TO THE FOLLOWING COMMENTS AND

AVENDMENTS.

2. CLAUSE 5(1) EMPOWERS AN IMMIGRATION OFFICER TO REFUSE LEAVE

TO LAND. THIS IS LEGALLY THE POSITION IN THE UNITED KINGDOM,

BUT IN PRACTICE THE HOME SECRETARY HAS PULED THAT THE POWER

TO REFUSE ADMISSION SHOULD NOT BE EXERCISED BY AN IMMIGRATION

OFFICER ACTING ON HIS OWN DISCRETION AND THE AUTHORITY OF A

SENIOR OFFICER MUST ALWAYS DE OBTAINED. MINISTERS ACCORDINGLY

CONSIDER THAT SIMILAR ADMINISTRATIVE DIRECTION SHOULD BE MADE

IN HONG KONG.

3. CLAUSES 17 (1)(C) AND 18. THE POWERS CONFERRED ON THE COVERNOR BY CLAUSE 17 (1)(C) GO BEYOND ANY POWERS CONFERRED ON THE HOME SECRETARY TO ORDER THE REMOVAL FROM THE UNITED

KINGDOM OF A COMMONWEALTH IMMIGRANT WHO IS NOT A PATRIAL.

ONCE A COMMONWEALTH CITIZEN HAS BEEN ADMITTED TO THE UNITED KINGDOM HE CAN BE REMOVED ONLY BY FORMAL DEPORTATION PROCEDURE. UNDER CURRENT UNITED KINGDOM LEGISLATION (IMMIGRATION APPEALS ACT 1969) THERE IS PROVISION FOR A TWO-TIER SYSTEM OF APPEAL

WHICH APPLIES ALIKE IN THE CASES BOTH OF CITIZENS OF THE UNITED KINGDOM AND COLONIES AND OF ALIENS) AGAINST DECISIONS OF THE EXECUTIVE. APPEALS LIE TO AN ADJUDICATOR AND THENCE TO AN APPEALS TRIBUNAL. THESE BODIES ARE INDEPENDENT OF THE EXECUTIVE,

AND THEIR DIRECTIONS ARE BINDING ON THE HOME SECRETARY. WITH SOME MODIFICATIONS IN THE AREA OF SECURITY CASES, THE IMMIGRATION DILL NOW BEFORE PARLIAMENT WILL NOT ALTER THIS SITUATION.

4. WE RECOGNISE THAT IT WOULD BE HEITHER APPROPRIATE NOR DESIRABLE FOR SUCH AN, APPEAL SYSTEM TO BE APPLIED TO HONG KONG. BUT ALTHOUGH CONTENT WITH THE TERMS OF CLAUSE 49 OF THE HONG KONG BILL, SO FAR AS THEY GO, MINISTERS CONSIDER THAT IN THE ABSENCE OF ANY RECOM- MENDATION BY A COURT, THERE SHOULD BE SOME PROVISION FOR A JUDICIAL ENQUIRY (ON THE LINES OF THAT PROVIDED FOR IN THE DEPORTATION (BRITISH SUBJECTS) ORDINANCE) INTO CASES INVOLVING THE REMOVAL

/UNDER CLAUSE 17(1)(C)

CONFIDENTIAL