Blog by Cynthia Orchard, Policy and Advocacy Advisor at the Leitner Center for International Law and Justice
Refugees in Hong Kong are considered “illegal immigrants”. None are granted protection in Hong Kong – not even the few who are recognised by Hong Kong authorities as being at risk of torture or persecution in their country of origin. Their only hope is resettlement by UNHCR to another country, which can take years. The Universal Periodic Review offers a platform for advocacy on their behalf.
“Hugo” is a refugee whose family were killed when he was seven years old, during a period of armed conflict in his home country, as reported in a 2022 Hong Kong Free Press article. As a young person, Hugo faced further persecution and fled to Hong Kong. Eventually, the Hong Kong authorities concluded he was at risk of persecution in his country of origin. However, even after this, Hugo’s life was full of hardship. He was not allowed to work and was still considered an “illegal immigrant” while he waited for resettlement to another country.
A recent report by the Leitner Center for International Law and Justice, Unseen Struggles: Addressing Migrant Rights in Hong Kong discusses the increasing control mainland China has exerted on Hong Kong, including through the 2020 Beijing-imposed National Security Law. The report explores how this has eroded human rights in the city and the impacts on already marginalized populations, in particular, refugees, migrant domestic workers, immigration detainees, and children of these groups.
Along with other countries, China’s human rights record is being scrutinized in the current cycle of the United Nations Universal Periodic Review (UPR). China’s session was held on 23 January 2024 (available to watch here). The Leitner Center made a UPR submission relating to refugees and marginalized migrants in Hong Kong, setting out numerous recommendations that China and Hong Kong authorities can adopt to ensure these groups are treated fairly and in line with international standards.
This blog article is based on the Leitner Center’s report and UPR submission and focuses on how UPR advocacy could lead to better protection for refugees in Hong Kong.
The situation of refugees in Hong Kong
A total of 22,744 people sought international protection in Hong Kong between March 2014 and July 2023. In Hong Kong, they are referred to as “non-refoulement claimants”. Only 301 of these people were recognised as being at risk of torture or persecution and referred to the United Nations refugee agency, UNHCR, for resettlement. Of these, 90 were recognised at the initial stage and 211 on appeal. As of June 2023, 14,700 non-refoulement claimants were living in Hong Kong.
The 1951 Refugee Convention does not apply in Hong Kong, but the UN Convention against Torture does apply in Hong Kong, as do the Convention on the Rights of the Child and various other international treaties. The city does not have an asylum procedure that offers protective status or a residence permit to stay in Hong Kong. Hong Kong has instead a procedure called the Unified Screening Mechanism (USM), introduced in 2014. Through this procedure, Hong Kong assesses “non-refoulement” claims by people facing removal from Hong Kong who state that they fear torture, inhuman or degrading treatment, or persecution in their home country. People who are recognised as being at risk of such human rights violations are referred to UNHCR for resettlement to another country. Over the past five years (2018-2023), 130 refugees were resettled from Hong Kong, mainly to the US and Canada.
The USM procedure is lengthy and deeply flawed. It lacks adequate procedural safeguards, such as access to free legal advice and interpreters, operates with an inordinately high standard of proof not in line with international standards, and has an alarmingly low initial recognition rate of approximately 0.4 percent (rising to around 1.3 percent when including cases accepted on appeal). Legal and policy changes in 2021 and 2022 made things worse for refugees. These changes permit immigration officers to communicate with officials in a claimant’s country of origin during appeals (which may mean communicating with a government that has persecuted that claimant) and allow removal of claimants while their cases are still under review. A 2021 report by the Justice Center Hong Kong indicates that USM decisions are often based on factual errors, rely on outdated or inappropriate sources, inadequate assessments relating to gender-based violence and persecution, or demonstrate a poor understanding of the law.
While waiting for a decision or for resettlement, most claimants live in dire conditions, in overcrowded and unsanitary accommodation. They are eligible for minimal government-funded support. The amount of support was set in 2014, ostensibly at a level to prevent destitution, but it has not been adjusted to reflect significant increases in living costs. Local professionals say the level of support is inadequate to cover basic needs. A social worker with the Center for Refugees in Hong Kong emphasized the stark reality in a 2022 news article:
“Some parents who choose to abide by the law [prohibiting them from working] have made the difficult decision to ration their baby’s meals and sell their milk powder to make ends meet. The government subsidies simply aren’t enough.”
The Convention on the Rights of the Child includes rights such as protection as child refugees, to adequate food and accommodation, to an appropriate education, not to be separated from parents, not to be punished due to immigration status, and to consideration of best interests. These rights are often unfulfilled for refugee children in Hong Kong (whether on their own or with family members).
“We ran out of food,” said “Akter”, a woman from Bangladesh who fled to Hong Kong after being raped and disowned by her family, as reported by Al Jazeera in 2023. She lives in inadequate housing with her husband, “Rana”, and two small children. The government’s insufficient support means Rana has sometimes worked illegally to help the family survive, which led to him being detained in 2018 for 13 months. Rana expressed despair about the necessity of working without permission to feed his family: “I don’t want to be doing this. But what choice do we have?”
Many people seeking refuge in Hong Kong are detained in immigration detention centres, which can be indefinite. Conditions are poor, and it is very difficult for detainees to access legal advice or challenge the lawfulness of their incarceration. There is no independent monitoring mechanism nor a confidential complaint mechanism through which detainees can report poor conditions or mistreatment by guards.
How could Hong Kong effectively protect refugees?
The Leitner Center’s recent report and UPR submission make recommendations that would help to ensure that refugees in Hong Kong are protected in line with international law. These recommendations include:
- Acknowledging that people seeking asylum are not “illegal immigrants” and respecting their right to seek and enjoy asylum, as set out in the Universal Declaration of Human Rights.
- Applying the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol to Hong Kong.
- Issuing temporary residence permits upon protection claims being submitted and long-term residence permits when they are approved.
- Providing free legal services, expanding legal aid, and reforming the regulatory framework for the legal profession to allow more effective assistance to refugees in Hong Kong.
- Implementing effective independent monitoring mechanisms that ensure refugees’ protection claims are determined in line with international standards and without undue delays.
- Introducing a time limit for immigration detention and more widely using alternatives to detention for people seeking international protection.
- Prohibiting detention of people for whom immigration detention poses disproportionate risks, including children, pregnant women, survivors of torture, victims of trafficking, LGBTQI+ people, and stateless people.
- Applying all provisions of the Convention on the Rights of the Child, including guaranteeing all refugee children have access to adequate food, housing, and other essentials; no child is subject to punitive actions or conditions for reasons relating to their own or a parent’s immigration status; the education system meets the needs of refugee children, addressing financial barriers, language, trauma, and other relevant factors; and that government officials consider a child’s best interests as a primary consideration in all decisions and actions.
States and international actors can use the UPR and other UN mechanisms to urge the authorities of Hong Kong and China to improve the situation of refugees, including refugee children, and other marginalised migrants in Hong Kong. At China’s UPR session on 23 January 2024, states made numerous recommendations relating to refugees, migrants, victims of trafficking, detainees, and marginalized children, including, for example, to:
- End repressive measures against women, LGBTQI+ persons, laborers, and migrant workers, including in Hong Kong and Macao (USA);
- Release all arbitrarily detained individuals, many of whom were named by the UN Working Group (USA);
- Respect relevant international norms such as the principle of non-refoulement (Republic of Korea);
- Consider adopting a national refugee law as part of its efforts to implement the 1951 Convention relating to the Status of Refugees (Republic of Korea);
- Strengthen measures to guarantee the protection of asylum seekers and their non-refoulement (Uruguay);
- Observe the international principle of non-refoulement and provide protection to migrants and refugees (Afghanistan);
- Expand access to education and healthcare of children, especially those in rural areas, with disability and others in situations of vulnerability (Philippines);
- Ensure that all detainees are formally accounted for, granted access to their families and held in officially recognised places of detention (Lithuania);
- Intensify actions to prevent, detect and combat trafficking in persons and ensure protection for victims (Ecuador);
- Intensify efforts to prevent, detect and combat trafficking in persons (Ukraine);
- Protect women from trafficking in persons, sexual and gender-based violence (Romania);
- Take concrete measures in combatting transnational organized crime such as online gambling and human and drug trafficking, including through cooperation with relevant countries and partners (Thailand);
- Strengthen access to remedy mechanisms for foreign migrant workers (Philippines);
- Strengthen measures to protect the rights of migrant domestic workers (Senegal);
- Further improve measures to reduce inequalities and discrimination against minorities and migrants (Bahrain).
Three countries (Lesotho, Rwanda, and Benin) also made recommendations regarding ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Numerous states (including the US, Japan, Australia, New Zealand, Canada, UK, and several other European countries) made approximately 20 recommendations relating to human rights violations in Hong Kong – including to repeal Hong Kong’s 2020 National Security Law, cease repression, and comply with relevant international human rights law. These recommendations, although not explicitly linked to refugees, would, if implemented, likely result in improvements for refugees, marginalised migrants, and others for whom advocacy has been curtailed under the current regime.
China has until June 2024 to say whether it accepts or rejects the recommendations made at its UPR session. States and other actors can in the meantime continue to press China to accept and implement recommendations and otherwise improve its human rights record. At China’s UPR session on 23 January, officials from China and Hong Kong confirmed that they take the UPR process very seriously, though they claimed that some UPR recommendations were based on false accusations or misunderstandings. Despite these allegations, there is some hope that China will accept many of the 2024 UPR recommendations. Other states and non-state actors can also use other UN human rights mechanisms (such as Special Mandates and UN treaty bodies) to advocate for China to improve protection for refugees, migrants, and others in future. In one example of related advocacy and awareness-raising, on 1 February 2024, US Congressman Chris Smith (Republican, New Jersey) raised refugee issues at a hearing of the US Congressional-Executive Commission on China focusing on China’s UPR session. It was also noted at this hearing that world leaders must continue to raise human rights violations in China at every opportunity to ensure that they remain on political and economic agendas.
Other human rights issues in China (including Hong Kong) – including worsening repression of minority groups, civil society, journalists, trade unions, and advocates for human rights and democracy – need to be addressed as a matter of urgency. These issues have rightly received considerable attention at China’s UPR and in other UN processes. Amid these pressing issues, however, we must not lose sight of the tragic situation of refugees and marginalized migrants in Hong Kong, and of improvements that could be made to ensure their human rights are respected.
For protection reasons, all names used in this article are pseudonyms.
About the Leitner Center
The Leitner Center for International Law and Justice at Fordham Law School trains law students to become international legal experts and impassioned human rights advocates through its pioneering human rights programs, clinics, and education initiatives; facilitates capacity building and advocacy with local social justice organizations and activists around the world; and contributes to critical research among scholars in international human rights.
Cynthia Orchard works as a consultant Policy and Advocacy Advisor with the Leitner Center. She has degrees in political science (BA, University of California at Santa Barbara), law (JD, University of Virginia) and international human rights law (MSt, University of Oxford). She has worked on issues affecting refugees, migrants, and stateless people for about 20 years with a variety of organisations, including UNHCR, the OSCE, Kids in Need of Defense UK, the European Network on Statelessness, Asylum Aid, Oxford’s Refugee Studies Centre, and others. Twitter/X: @cynthiaorchard.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.