ENG-2002 — Page 508

POPULATION AND IMMIGRATION

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of the Basic Law are subject to the exit approval provided for under Article 22(4) of the Basic Law. This ultimately led to the two judgments of the Court of Final Appeal (CFA) given on January 29, 1999, in the cases of Ng Ka Ling and Chan Kam Nga. The CFA ruled, among other things, that the two requirements were unconstitutional.

The HKSAR Government fully respected the CFA's power of final adjudication, but believed that the true legislative intent of Article 22(4) and Article 24(2)(3) of the Basic Law as reflected in the relevant background materials relating to these articles was not the same as had been interpreted by the CFA. A special survey conducted by the Census and Statistics Department showed that as a result of those two CFA judgments, 1.6 million persons in the Mainland would become eligible for ROA. Their prospective arrival would create unbearable social and economic burdens on the community. The public was anxious that the HKSAR should find a speedy solution to the serious problems arising.

Following a careful examination of all possible legal options and with the strong support of the community and backed by a majority vote of support of the Legislative Council, the Chief Executive requested the State Council to seek an interpretation from the Standing Committee of the National People's Congress (NPCSC) on the relevant provisions of the Basic Law. The NPCSC gave an interpretation on Article 22(4) and Article 24(2)(3) of the Basic Law on June 26, 1999 (NPCSC Interpretation). The NPCSC Interpretation clarified that persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents were eligible for ROA only if, at the time of their birth, at least one of their parents had ROA under Article 24(2)(1) or Article 24(2)(2) of the Basic Law. Furthermore, eligible Mainland residents must apply for exit approval provided for under Article 22(4) of the Basic Law from the Mainland authorities before coming to Hong Kong for settlement. The CFA confirmed unanimously in its judgment given on December 3, 1999, in a subsequent court case that the NPCSC Interpretation was a valid and binding interpretation of Articles 22(4) and 24(2)(3) of the Basic Law, and that it had effect from July 1, 1997. On the same day the NPCSC Interpretation was given, the Government announced a 'Concession' Policy. In accordance with the policy, those who were in Hong Kong between July 1, 1997, and January 29, 1999, and who at the time claimed ROA with the Director of Immigration of which the Director had a record would not be affected by the NPCSC Interpretation. About 3 700 persons would benefit from this 'Concession' Policy.

About 5 000 applicants who were Mainland residents jointly applied for judicial review in the Ng Siu Tung case and the Sin Hoi Chu case (Ng and Sin Cases), claiming that they should not be affected by the NPCSC Interpretation and could benefit from the CFA's judgments given on January 29, 1999, or that the 'Concession' Policy should apply to them. In view of the large number of applicants, some 20 of them were chosen by the parties as representative applicants in the Ng and Sin Cases.

On January 10, 2002, the CFA handed down its judgment in the Ng and Sin Cases and concluded, among other things, that:

(1) Applicants who were not parties to the cases of Ng Ka Ling and Chan Kam Nga on which the CFA had on January 29, 1999, given judgments were affected by the NPCSC Interpretation unless they could succeed on another issue raised in these cases;

(2) Applicants who were recipients of (a) the specified pro-forma replies from the Legal Aid Department sent between December 7, 1998, and January 29, 1999,