TNAG-2324-FCO40-3368-Hong-Kong-Bill-of-Rights-Vietnamese-boat-people-1991 — Page 129

CODE 18-77

CONFIDENTIAL

Reference..

requirements.

Even if detention in closed camps is still considered essential, one way of reducing the severity of current breaches of Article 9 would be to invest more resources in the screening process in order to reduce the period spent in detention awaiting screening (currently two years on average) to a more reasonable length.

4.

5.

Amendments to existing section 13D(1) (power to detain)

The material amendments are:

(i) The words "whether or not he has requested permission

to remain in Hong Kong" have been inserted between "may" and "be detained";

(ii) From the phrase "pending a decision to grant or

refuse him permission to remain in HK as a refugee", the words "as a refugee" have been deleted;

(iii) A new sub-section (1A) provides that a person

detained under sub-section (1) shall be detained pending a decision to grant or refuse permission to remain or pending removal;

(iv) A new sub-section (1B) provides that detention shall not be unlawful by reason of the period of detention if that period is reasonable having regard to various (specified) factors;

(v) A new sub-section (1C) provides that detention is not

unlawful by reason that screening is not carried out in sequence according to date of arrival.

Comment

Overall, the negative effects of these amendments have been considerably alleviated by the concessions offered, in particular the reversion from "shall" back to "may" in section 13D(1). Please note that this assessment is on the assumption that "shall" will be deleted in both places in that provision, ie immediately after (C), where it relates to persons and in the second half of the same sentence, where it relates to children. This point needs to be clarified with

HK.

6.

My principal remaining objection is to the retention of "shall" in sub-section (1A). It appears to have the effect that if the Director exercises his discretion to detain under subs (1), the person must be detained until the decision whether to grant permission to remain is made or removal executed. This still seems at odds with (1B). Moreover, requirement apparently applies even to those who have not

this

CONFIDENTIAL