A boy born in Hong Kong to a mainland Chinese mother has automatic residency, but three adopted mainlanders do not, the territory's top court ruled yesterday in the latest round of Hong Kong's intense fight to tightly control immigration.
The devastated mother of 14-year-old adoptee Tam Nga-yin, who now faces deportation, wailed and shouted after the Court of Final Appeal issued its judgment.
"The Hong Kong government has cheated me," said Man Yuet-kwai. "If they try to separate me from my daughter, I won't let them. There's no justice at all."
Man said she exhausted all legal channels over the past decade for the residency rights of her daughter, an orphan she adopted as an infant. Man is a Hong Kong resident who lived with the daughter in China before returning here with Tam five years ago.
Ruling in two cases, the court handed Hong Kong's government one victory and one defeat over immigration law and residency rights -- perhaps the most difficult issue to confront Hong Kong since Britain gave it back to China four years ago.
The court's five justices ruled unanimously that three-year-old Chong Fung-yuen, born here to a visiting mother from China, has the automatic right of abode.
Hong Kong's mini-constitution, known as the Basic Law, clearly spells out that any Chinese person born in the former territory before or after the handover on July 1, 1997, has residency, the court said, and a judicial reference to Beijing was not required.
The government had warned earlier that if Chong was allowed to stay, more mainland women would be encouraged to give birth in Hong Kong..
The court didn't accept the argument. The justices cited Immigration Department figures showing that only 555 children were born in such circumstances each year since the handover.
In the case of three adoptive children, the outcome was different.
The justices voted four to one to reject the arguments that those children must be allowed to live in affluent Hong Kong on the basis of their adoptive parents' residency.
Chief Justice Andrew Li and three colleagues found that the Basic Law's provisions for children of Hong Kong people to become residents "refers only to natural children" and cannot be applied to those who are adopted from China.
Justice Kemal Bokhary disagreed, writing that the law could be interpreted to include adopted children.
An attorney for the adoptees, Peter Barnes, said he would ask the Immigration Department for two weeks to study the ruling before any removal orders are carried out.
The government had urged the court to consult with Beijing before making its rulings. The justices did not do so, saying there was no need.
Hong Kong's government stirred huge controversy two years ago by persuading Beijing to overrule the Court of Final Appeal in one landmark immigration case -- which critics say undermined Hong Kong's autonomy and its rule of law.
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