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March 4, 2014

Refugees’ Right to Work Denied by Hong Kong Court of Final Appeal

by Asylum Access

Hong Kong’s Court of Final Appeal recently delivered a highly disappointing judgment in GA. v. Director of Immigration, unanimously deciding that refugees may be denied a right to work in the country. The decision, which has received considerable international attention, has been widely criticized by the public as unjust, inhumane and lacking in common sense.

Although Hong Kong’s law currently provides that asylum seekers, recognized refugees and torture claims may be granted “discretionary permission” to work by the Director of Immigration, in practice, this discretion is rarely exercised. As a result, these individuals are forced to reside in often-intolerable living conditions, work illegally and rely on a minimal government-backed allowance. With only approximately one hundred refugees in the territory, there is little weight to the argument that extending the right to work to refugees would have any notable impact upon Hong Kong’s labor market.

The case in question was brought by four individuals, three of which were UNHCR recognized refugees and one a torture claimant, and litigated by Daly & Associates. All of the appellants have been living in Hong Kong for nine or more years, with no ability to return home or opportunity for resettlement in a third country. They challenged the government’s restrictive employment policy arguing that  the right to work for refugees and torture claimants exists by virtue of Hong Kong’s Bill of Rights, its obligations under the International Covenant on Economic, Social and Cultural Rights and common law.

Although the court conceded that the refugees had been, “effectively stranded here in Hong Kong for a prolonged period of time,” they rejected the appellants arguments finding that  the constitutional right to work does not exist in favors of refugees, nor does the right exist for refugees at common law. In response to the argument that the policy violated Hong Kong’s obligation under ICESCR, the court rejected that Article 6 of the covenant could be relied on, reiterating the principle that international treaties do not confer or impose any rights or obligations on individual citizens unless and until they are made part of Hong Kong domestic law by legislation, and that the UK’s reservation to Article 6 could be extended to Hong Kong.

Activists have been outraged by the decision, stating that the case exposes the Hong Kong’s inhumane treatment of refugees. As Mark Daly, the lawyer representing the appellants, commented,

“Regrettably the court sweeps away fundamental rights and legal logic in the name of the vague concept of immigration control….It is reminiscent of the domestic helper case where the court again fails to take the opportunity to safeguard human dignity and protect the most vulnerable amongst us. ”

With no ability to go home and no right to earn an income in exile, refugees in Hong Kong are denied the opportunity to become productive members of society and contribute to the national economy. They are forced into a position of poverty and the informal sector where they will pay no taxes. The decision further entrenches an inadequate asylum policy in the territory, and thus, Hong Kong now must face its tarnished reputation as one of the few developed countries in the world who bans recognized refugees from fulfilling their fundamental right to work.

Anna Wirth is the Global Policy Fellow at Asylum Access. She  previously studied and practiced law in Melbourne, Australia (Monash University) and received her European Master’s in Human Rights and Democratisation (E.MA) from EIUC, in partnership with University of Helsinki.

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