Payne Hicks Beach

Payne Hicks Beach

27 August 2020

International Protection for Hong Kong residents

Early in the morning of Monday 10 August, two hundred police officers raided the corporate offices of Mr Jimmy Lai’s company Next Digital in Hong Kong. Mr Lai and his publication, Apple Daily, have been a constant voice of support for pro-democracy demonstrators, regularly criticising the governments of Hong Kong and Beijing and calling for direct action on the streets. Mr Lai has now become the first high profile example of the power of the new national security law imposed on Hong Kong.

The new law came into force on 30th June and was widely recognised as Beijing implementing its will over Hong Kong. The law creates deliberately vague offences - such as colluding with foreign forces - with maximum penalties of life imprisonment. The purpose of the ambiguously worded offences is to allow their application to anybody who criticises Beijing; the Chinese Communist Party have openly admitted that the law was necessitated by the instability caused by ongoing anti-government protests. 

Mr Lai was one of ten people arrested that day on similar charges. The others included his two sons, four executives of Next Digital, and Agnes Chow, a pro-democracy activist. No details of the charge against Mr Lai have been released, save that he has been accused of “collusion with foreign forces.” Mr Lai was released on bail on 12 August following widespread protest, but continues to be labelled a “genuine traitor” by Chinese state media, and remains at risk of transfer to mainland China for his trial — an outcome which would be extremely concerning for his supporters, given the routine criticisms of China’s judiciary. 

Despite the clear risks, Mr Lai has publicly declared his determination to remain in Hong Kong and fight for justice. Unfortunately, not all protestors and pro-democracy advocates see that as a viable option. Current figures estimate that hundreds of dissidents - many of whom are in their teens or early twenties - have left Hong Kong over the last year. This was prior to the new security law, which suggests there will be more in response.

Many of these dissidents have fled violating their bail conditions, having been arrested last year during the demonstrations. There are reports of young people entering countries such as the UK as tourists and applying for refugee status on arrival. The majority of their claims will be based on political opinion, one of the bases of protection under the 1951 Refugee Convention. The claims are likely to argue that, if forced to return to Hong Kong, their rights under Articles 3 (protection from torture or inhuman or degrading treatment) and 6 (right to a fair trial) of the European Convention on Human Rights will be infringed. Claims may also include reliance on Articles 5 (unlawful detention) and 10 (restrictions on their freedom of expression).

An example of a successful asylum application for a political activist from Hong Kong is the former British Consulate worker Simon Cheng, who travelled to Shenzen last year and was arrested on his return to Hong Kong. He was held for 15 days during which, he said, he was hooded, hung for hours in a spread-eagle position and beaten to force him to stay awake. Under the torture he provided information to the Hong Kong police on individual protesters and demonstrations. Mr Cheng was granted asylum in the UK on 26 June this year.

Britain and other western powers have reacted with anger to the new security law. On 9 August, Australia, Canada, New Zealand, the UK and the United States signed and released a joint statement expressing their concern, and the UK government has laid out plans to provide a unique form of visa for the 2.9 million who hold British Dependent Territories citizenship, having been born no later than 1997. This visa is discussed in detail here but, in short, it will provide qualifying persons with a right to live and work in the UK, leading to full British citizenship. 

Because of this novel visa route, the number of political refugees arriving in the UK is likely to remain small. Nevertheless, those who do not fall within the visa requirements, or those whom Beijing continues to pursue even after their arrival in the UK, may well end up seeking the stronger protection provided by a successful asylum claim. 

Historically, this would have been necessitated by the risk of extradition to Hong Kong on trumped up criminal charges, followed by unofficial transfer to mainland China — as has happened to many individuals in the past, such as Xiao Jianhua and Lee Bo, and the former head of Interpol, Meng Hongwei. Had the CCP’s now defunct extradition bill become law, permitting formal extradition from Hong Kong to mainland China for the first time, that risk would have become greater still. 

For the time being at least, the possibility of enforced return is minimal even without refugee status, due to Britain’s decision to ‘indefinitely’ suspend its extradition treaty with Hong Kong. It remains to be seen whether this measure, as well as the other steps Britain has taken to protect Hong Kong nationals, will last in the face of increasing diplomatic pressure from Beijing. 

It is our hope that the British authorities will ignore criticisms from the CCP, and continue to put human rights before political expediency. Whatever happens, our Citizenship and Immigration Team will be on hand to provide expert advice on the steps Hong Kong citizens should take to protect themselves.

Article by Partner Matt Ingham, and Paralegals, Richard Milford and Isaac Ricca-Richardson in the Citizenship & Immigration Department at Payne Hicks Beach. For further information please contact Matt Ingham by email, or, alternatively, telephone on 020 7465 4300. 

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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