Enforcing the Right to Family Life in Hong Kong Courts: The Case of Dependant Policy

• Main Author: Matthew Chuen Ngai Tang
• Format: Article
• Language: English
• Published: National Sun Yat-sen University 2017-07-01
• Series: Contemporary Chinese Political Economy and Strategic Relations: An International Journal
• Subjects: human rights; Hong Kong legal system; right to family life; international covenant on civil and political rights; administrative law; dependant policy
• Online Access: http://icaps.nsysu.edu.tw/var/file/131/1131/img/2374/CCPS3(2)-Tang.pdf

Despite the Hong Kong courts’ seemingly robust protection of fundamental rights and civil liberties, enforcing family rights remains extremely difficult. While the right to family life is safeguarded by both domestic and international human right instruments, applicants in judicial review cases are usually not able to rely on it to challenge the decisions made by the immigration authority. This paper examines the challenges in enforcing the right to family life in Hong Kong’s Dependant Policy with a particular focus on the Hong Kong Court of Appeal’s recent decision in BI v Director of Immigration. The immigration reservation, entered into by the United Kingdom when ratifying the International Covenant on Civil and Political Rights, has become a justification for a restrictive immigration regime even after the transfer of sovereignty. The Hong Kong courts also repeatedly accord wide discretion to immigration authority. The courts’ reluctance to scrutinize socio-economic policies reveals one of the key weaknesses in enforcing fundamental rights in Hong Kong by the way of judicial review.