TNAG-2668-FCO40-3865-Hong-Kong-Civil-Service-1993 — Page 158

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Permanent Resident of Hong Kong

30. The Bill of Rights, the Immigration Ordinance and the Basic Law use the expression "permanent resident". It is defined in the Immigration Ordinance and in Article 24 of the Basic Law, but is undefined in the Bill of Rights.

Residence of 7 years

31. We do not contest the definition of permanent resident used in the Basic Law. This includes a person not of Chinese Nationality who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and who has taken Hong Kong as his place of permanent residence.

BDTC(HK), intention to assume residence

32. In interpreting the meaning of permanent resident in the Bill of Rights, we anticipate that a court would look to the laws of Hong Kong to determine what the expression means here. Clearly, a person who has acquired British Dependant Territories Citizenship (Hong Kong) [BDTC(HK)] would be regarded as a permanent resident. Indeed, that is the position under the Immigration Ordinance and a person can acquire that citizenship in certain circumstances after 3 years of residence. Because the right to vote is granted to persons after 7 years residence, such a person would be considered to be a permanent resident, which, in fact, is the alternative qualification under the Electoral Provisions Ordinance. At common law, permanent residency is determined by a combination of a person's intentions to remain in a place and concrete evidence of his intention. This could be a period substantially shorter than 7 years.

AECS position

33. For ease of argument, our Association, is prepared to accept a definition of "local" that would include persons possessing the status of BDTC(HK) holders and persons of 7 years residence. If the matter had to be resolved in court, we would argue for the common law definition.

What do other countries do?

34. Even though other countries prefer their "locals" when recruiting for the civil service, those countries which have adopted the International Convention on Civil and Political Rights (which is virtually identical to our Bill of Rights Ordinance) do not restrict access to "citizens". Persons who have been accepted as immigrants to the country qualify as permanent residents and thus compete on an equal basis with citizens. In Canada, for example, an immigrant from Hong Kong could apply for and obtain employment in any of the various governments at the municipal, provincial and national levels. Why should Hong Kong not treat its permanent residents in the same way as other countries treat theirs? A policy such as Hong Kong's under which residents of many years standing could be removed from the civil service would be intolerable and viewed as astonishing in Canada, and in most other countries.