TNAG-2323-FCO40-3367-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 142

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Lynas case (1975) where the Commission regarded it as "clear that only the existence of extradition proceedings justifies deprivation of liberty in such a case. It follows that if for example the proceedings are not conducted with the requisite diligence ... it ceases to be justifiable under Article 5(1)(f). Within these limits the Commission might therefore have cause to consider the length of time spent in detention pending extradition from the point of view of the above cited provision." More recent examples include the Court decisions in Van der Leer and Wassink in 1990 and the Commission decision in Osman this month. (Texts can be supplied for HKG legal advisers if required).

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Two

It does not follow that, even if (as is quite likely) the same kind of reasoning were adopted under the ICCPR, breaches of Article 9 would necessarily be found. In relation to pre-screened VBP, I would expect the HRC (or a court) to consider all the circumstances, including the number awaiting screening, and the limitation of resources, in deciding whether "due diligence" is being exercised. years certainly sounds excessive, but if that is the best that can reasonably be achieved, a good defence might be made out. The case of the screened-out VBP strikes me as much harder to argue, since at present I suppose it would be difficult to say that there is a foreseeable prospect of removal. Nevertheless, I see no reason why a defence based on a full explanation of endeavours to resolve the problem should not be mounted. Of course, without the relevant facts, statistics, etc., I am in no position to attempt to predict the likely outcome.

The effect of the reservation

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On the face of it, the reservation makes all immigration legislation completely immune from scrutiny in terms of all provisions of the ICCPR. We could of course attempt to argue that it does have that effect. However, doubt that the HRC would consider itself debarred from looking at the reason for invoking the reservation in relation to VBP. (It is of course much harder to predict how a Hong Kong Court might react to Clause 11 of the BOR). The following sorts of arguments could be made in favour of a restricted reading of it:

(i) The purpose of the reservation is indicated by the

reference in it to Article 12(4) as being to permit restrictions on the rights of entry and settlement of certain categories of the UK's own nationals.

Moreover, the words "reserves the right to continue to apply .. indicate that the purpose of it related to matters covered by immigration legislation already in

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