TNAG-2323-FCO40-3367-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 140

CODE 18-77

HKC 241/4

RECE

29 JAN 1991

GY

TRY reuon Tasen

ONFIDENTIAL

8

Reference...

Tel. out.

a faxed to HK.

CC:

ра

Ru

125/1.

From:

J Barrett

Assistant Legal Adviser

K 166 270 3381

Date: 24 January 1991

Mr Burns

Mr Colvin) SEAD

Mr Bruce )

Mr Walwyn, UND

Mr Rankin)

Legal Advisers

Mr Hendry)

Ms

Ms Major

HKD (WH 305)

HONG KONG BILL OF RIGHTS (BOR) AND THE VIETNAMESE BOAT PEOPLE (VBP)

1.

I refer to Mr Bruce's minute of 15 January requesting advice on the compatibility with the ICCPR of the indefinite detention of VBP. This was prompted by HK Tel No.98 which

to raise both the question of (a) the compatibility of their existing practices, as well as (b) the effect of their proposal to amend the Immigration Ordinance so as to put beyond legal doubt their power to detain for indefinite periods.

I can certainly offer some comments upon (a), but regret that it is impossible to give any firm advice about (b) without having seen a text of the proposed legislation.

(a) The present practice and the present law

2.

There would seem to be two categories of VBP causing

concern:

(i) Those awaiting screening;

(ii) The screened-out who are unwilling to return to

Vietnam.

I assume that both are presently held under Section 13D of the Immigration Ordinance which permits detention:

(i)

"pending a decision to grant or refuse him permission

to remain in Hong Kong as a refugee", and

(ii) "after a decision to refuse him permission to remain in

Hong Kong, pending his removal from Hong Kong."

JB1AAN

CONFIDENTIAL