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The government is studying various legal options to resolve the longstanding problem of ineligible mainland women giving birth to babies in Hong Kong, Secretary for Justice Rimsky Yuen disclosed on Monday.
Over the past decade, the number of children born in Hong Kong to parents without legal right of abode in the city exceeded 177,000. These children, however, enjoy right of abode in Hong Kong, by virtue of a Court of Final Appeal ruling in 2001.
As soon as the study is completed in two or three months, Yuen may seek further opinions from independent counsel or constitutional experts as to next steps.
Yuen, however, maintained the problem should be settled within the local judicial system as the government avoids seeking an interpretation of the relevant Basic Law provision Article 24(1) from the National People’s Congress as far as possible, while amendment to the Basic Law will be the last resort. He added if administrative measures can resolve 99 percent of the problems and society wants no more legal actions, the government may drop further legal actions.
Yuen talked to the local media on Monday after assuming office on July 1.
Referring to possible means to resolve the problem, Yuen said he is aware of the suggestion to amend the current Immigration Ordinance to grant abode right only to locally-born babies with at least one permanent Hong Kong resident between his parents.
There is also a suggestion not to issue birth certificates to the babies with two mainland parents, to trigger litigation against the government.
On the private bill proposed by lawmaker Jeffrey Lam to amend the Immigration Ordinance, Yuen said it is up to Chief Executive Leung Chun-ying to decide whether to allow Lam to table the bill in the Legislative Council.
Yuen seemed to reject the suggestion to withhold issuance of birth certificates. “We don’t want to break the law and be sued,” he commented. “In the interest of rule of law, there is no strong justification for the government not to observe its own laws or the verdict of the Chong Fung-yuen case.”
He added, if the court issues a declaration to remove the permanent residency of babies born to mainland parents, the declaration may be proactive since it will not affect children who already have obtained birth certificates. Another form of declaration may be retroactive but it would be highly controversial.