A Hong Kong permanent resident’s child born in a member state of the European Union was denied a Hong Kong identity card by the Immigration Department. The problem behind the issue could be the definition of “settled abroad”.
The Hong Kong Chinese mother applied for the issuance of a Hong Kong identity card when she brought her first child born in an EU country back to Hong Kong in 2013. It was approved.
But the department refused to issue a Hong Kong identity card to her second child born in that EU country, when she brought the child back to Hong Kong last year.Article 24 of the Basic Law states that persons of Chinese nationality born outside Hong Kong would be Hong Kong permanent residents, if their parents are Chinese citizens born in Hong Kong or have ordinarily resided in Hong Kong for a continuous period of not less than seven years.
But Article 5 of the Nationality Law of the People’s Republic of China states that “a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth, shall not have Chinese nationality.”
In a previous case in 2012 involving a couple who had emigrated to Canada, the Court of First Instance upheld an Immigration Tribunal decision that their child was not entitled to a Hong Kong ID card for this reason.
In the current case the Immigration Department indicated that the Hong Kong mother had settled abroad, so her children should not have Chinese nationality, and so were not eligible for the identity card.
However, the mother told Civic Party lawmaker Kenneth Chan Ka-lok that she has not yet acquired citizenship or permanent resident status in the country where she now lives. Most EU countries do not automatically confer citizenship on children born in their territory to non-citizens.
Chan then raised the question at the Legislative Council’s weekly question and answer session, and received a written reply from the Security Bureau.
“In considering whether the parents of the applicants have settled abroad, we will take the actual circumstances of individual case into account and make reference to the relevant court judgements and legal advice,” wrote Secretary for Security Lai Tung-kwok.
“In general, persons who reside ordinarily in a foreign country and are not subject to any condition of stay therein will be treated as having settled abroad.”
Lai added that the Immigration Department does not maintain statistics of Hong Kong permanent identity cards registrations made by children born overseas to Hong Kong permanent residents and the reasons for refusal of registrations.