TNAG-2323-FCO40-3367-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 160

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CONFIDENTIAL

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INTER PROPOSED IN THE BILL. IN THIS CONNECTION WE ARE REVIEWING, ALIA, THE IMPACT OF THE BOR INSOFAR AS IT RELATES TO CURRENT POLICY ON VBP, WITH A VIEW TO PUTTING THE MATTER BEFORE EXCO.

2. A RELEVANT FACTOR IN THIS IS THE SCOPE OF THE RESERVATION RELATING TO IMMIGRATION LEGISLATION MADE BY HMG WHEN IT RATIFIED THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR). THERE IS, AS YOU KNOW, A CONTINUING NEED IN HONG KONG TO BE ABLE. TO DETAIN VBP FOR LENGTHY PERIODS. VBP ARE DETAINED PENDING A DECISION ON REFUGEE STATUS FOR 2 YEARS ON AVERAGE. THOSE DETERMINED NOT TO BE REFUGEES ARE THEN DETAINED PENDING REMOVAL FROM HONG KONG WHICH CAN BE ARRANGED WITHIN A FEW MONTHS FOR THOSE WHO VOLUNTEER OR DO NOT OBJECT TO RETURN TO VIETNAM. BUT AT PRESENT THE PERIOD IS INDEFINITE FOR THOSE WHO DO OBJECT TO

REPATRIATION.

3. IF THE RESERVATION TO THE ICCPR, AS APPLIED TO THE PARTICULAR CIRCUMSTANCES OF HONG KONG, DOES NOT COVER THESE LENGTHY PERIODS OF DETENTION IT WOULD APPEAR THAT HMG MAY BE IN BREACH OF A NUMBER OF THE PROVISIONS OF THE ICCPR (E.G. ARTICLE 9(1) AND (4), POSSIBLY ARTICLE 12(1)).

4. INTERNATIONAL JURISPRUDENCE IN THIS CONTEXT GENERALLY PRECLUDES ANYTHING OTHER THAN SHORT PERIODS OF DETENTION. INDEED, IN REVIEWING OUR PAPERS WHEN THE QUESTION OF DETAINING VBP WAS CONSIDERED IN 1982, WE HAVE NOTED YOUR ADVICE THAT THE RESERVATION SHOULD BE INTERPRETED NARROWLY IN THE SENSE THAT PERIODS OF DETENTION UNDER THE RELEVANT IMMIGRATION LEGISLATION SHOULD BE SHORT, AND THEN ONLY FOR SO LONG AS MIGHT REASONABLY BE NEEDED FOR THE RELEVANT AUTHORITIES TO MAKE A DECISION WHETHER TO ADMIT OR REMOVE THE PERSON CONCERNED.

5. ACCEPTING THE ABOVE AS THE GUIDING PRINCIPLE BEHIND THE

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