Overused, Underexamined? Immigration Detention in Hong Kong

Guest post by Surabhi Chopra. Surabhi is an associate professor at the Faculty of Law, Chinese University of Hong Kong.

In 2018, 21,714 people were admitted to immigration detention facilities in Hong Kong. For a city of 7.5 million, where 92 percent of residents are Chinese, these are high numbers. Official figures show that the number of people put in immigration detention annually has hovered between 21,336 and 24,191 between 2014 to 2018. But beyond this basic detainee count, little is publicly known about the immigration detention system in Hong Kong. 

In July last year, I began a research project, Immigration Detention and Vulnerable Migrants in Hong Kong, that seeks to change this. It focuses in particular on how the detention system operates in relation to vulnerable migrant groups, including torture survivors, victims of trafficking and low-income migrant workers. The project is funded by the Hong Kong Research Grants Council and housed at the Faculty of Law, Chinese University of Hong Kong. My fellow researchers and I are analysing laws, judgments, policy documents, and legislative discussions on immigration detention. Later this year, we will begin interviewing individuals who have experienced immigration detention, as well as other actors within the system. Drawing on these methods, our aim is to analyse how the detention system operates, identify factors that render migrants vulnerable to detention and examine how detention impacts access to justice. In developing our research agenda, we have drawn upon the comparative insights offered by scholars from the Border Criminologies community. We hope, as our analysis develops, to share our work on this forum.  

Immigration detention in Hong Kong is purely administrative. The decision to detain a migrant suspected of breaching immigration rules is made by the police or immigration officials, without any judicial authorisation or oversight. Powers of detention are broad. While in theory a detainee can challenge her detention through a habeas corpus petition before a court, securing legal aid and representation is extremely difficult in practice.    

Our early findings indicate that many immigration detainees in Hong Kong are low-income migrant workers and non-refoulement claimants. The legal framework is designed in ways that renders these groups more susceptible to detention.  For example, foreign domestic workers - the largest single group of migrant workers in Hong Kong - are only granted short-term visas no matter how long they have worked in the city. Their conditions of stay can expose them to exploitation. The legal requirement that they live with their employers means many domestic workers have little space, privacy, or autonomy. If fired, they must find new employment in two weeks or exit the city. Many who are faced with this predicament work irregularly to get by, thus breaching the law and becoming liable to detention.  

The Hong Kong government has not ratified the Refugee Convention. However, it recognises its non-refoulement obligations under the ICCPR and the UNCAT. Individuals who fear that they may be subjected to torture, persecution, ill-treatment or arbitrary deprivation of life upon return to their countries-of-origin can apply for protection from forcible return. But the law is framed such that these individuals must overstay their visas – i.e., commit an immigration offence - in order to apply for protection. Thus, a condition precedent of seeking protection actually exposes applicants to detention. Once their applications are accepted, non-refoulement applicants are given a basic subsistence allowance but are not permitted to work while awaiting a decision upon their claims. In the interim, some supplement their allowance by working hazardous jobs in the informal economy. This too, opens the door to detention.    

Little information is publicly available about conditions in immigration detention. It is even unclear what rules apply within detention facilities. An operational manual was disclosed in the Hong Kong legislature in 2010, but we don't know if this has since been amended or even whether it is still being used. While the law provides for justices of the peace to visit detention facilities, this does not amount to robust independent monitoring of immigration detention.

Our early discussions with civil society groups suggest problems with access to healthcare, poor hygiene, and mistreatment by detention centre staff. Last year, 28 detainees went on an extended hunger strike against their living conditions and the period of time they had spent in detention. Anna Tsui, who co-coordinates a support group for detainees, has written about the circumstances that prompted the strike. Most worryingly, we have heard accounts of beating, solitary detention, and strip-searching by detention centre staff. Based upon the limited information available, these frontline staff are immigration personnel, not police officers or private contractors. Their powers to wield weapons are fairly limited at present, but are likely to increase if legal amendments currently being considered by Hong Kong’s legislature secure sufficient support.

As in other parts of the world, the Covid-19 pandemic heightened the vulnerability of immigration detainees in Hong Kong. Ongoing border closures and reduced international flights increase the chances of extended detention for people awaiting removal from Hong Kong. Further, as Hong Kong-based lawyer Rachel Li and I noted recently, the severities of the detention system bite harder during a pandemic. To our knowledge, the Hong Kong authorities do not implement a protocol for identifying individuals unsuitable for detention. It is possible that immunocompromised detainees or trauma survivors triggered by pandemic-related fears are not getting the care they need. 

In the coming months and years, shrinking democratic space in Hong Kong is likely to affect immigration detention. Late last year, all but one of the ‘pan-democrat’ legislators in the region’s Legislative Council were expelled or resigned. While the purge had nothing to do with immigration, a compliant legislature will not speak up if migrants’ rights are rolled back. This has been obvious during ongoing discussions of a Bill that would, inter alia, amend the law related to immigration detention. The government has proposed expanding the power of detention centre staff to use weapons. Proposed reforms would also allow systemic factors - such as staffing and budgets - to be taken into account when evaluating whether the duration of detention was reasonable. This would undercut long-standing common law protection against disproportionate immigration detention. While two legislators queried the scope of the power to wield firearms, legislative discussion on the whole has been hostile, with legislators urging caps on legal aid for detainees, recommending long-term mandatory detention for non-refoulement claimants, and accusing such claimants of fraud and serious criminality. Thus far, legislators have not engaged with civil society concerns about the Bill.

It is likely only a matter of time before most of the government’s proposed amendments become law. This makes the need to research immigration detention in Hong Kong, and in Asia more generally, even more pressing. In Hong Kong, as in many other parts of Asia, even the most minimal information, such as a gender breakdown of detainees or the extent of the detention estate, is difficult to access. Mapping the system, tracing its processes, is a necessary first step. Building upon that, we need to understand the formal and informal motivations that guide decision-making about detention, as well as the ways that detainees navigate the detention system. We need to explore why the sizeable Anglo-American and European literature on immigration detention – which tells, on the whole, an extremely cautionary tale - has had little impact in Asia. Ultimately, we need to understand how immigration detention fits within and shapes the racialised precarity of the low-income migrant in Hong Kong.

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How to cite this blog post (Harvard style) 

Chopra, S. (2021). Overused, Underexamined? Immigration Detention in Hong Kong . Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/04/overused [date]