CHINA
Submission to the Universal Periodic Review, 45th Session of the UPR Working Group (January/February 2024)
Concerning Migration-Related Detention in the Hong Kong Special Administrative Region of the People’s Republic of China
1. INTRODUCTION
1.1 This submission for the fourth cycle of the Universal Periodic Review (UPR) of China has been prepared by the Global Detention Project (GDP), a non-profit organisation based in Geneva that promotes the human rights of people who have been detained for reasons related to their non-citizen status; and the Asia Pacific Refugee Rights Network (APRRN), a network consisting of more than 240 civil society organisations and individuals from 28 countries committed to advancing the rights of refugees in the Asia Pacific region.
1.2 This submission focuses on human rights concerns with respect to migration-related detention in the Hong Kong Special Administrative Region (hereto referred to as “Hong Kong”).
2. CONTEXT
2.1 The detention of migrants, asylum seekers, stateless persons, and other non-citizens for reasons related to their immigration status or refugee claims is a long-standing issue of concern in Hong Kong, dating back to the 1970s and humanitarian crises spurred by conflicts in Southeast Asia. Hong Kong was the “first port of refuge” for many refugees fleeing Vietnam, but arriving “boat people” were often confined in secure detention camps where conditions were deplorable.[i]
2.2 After China resumed sovereignty over Hong Kong, it ceased accepting Vietnamese migrants and refugees and vigorously defended its policy of refusing all asylum seekers, who today are generally treated as unauthorised immigrants. Detention continues to be widely used as an immigration control measure in Hong Kong. In addition to on-going migration and asylum pressures from countries across Asia, the Special Administrative Region’s immigration policies have also been shaped by migration flows from mainland China.
2.3 As this submission illustrates, the current immigration detention system in Hong Kong raises a number of concerns, including in particular with respect to the detention of children, arbitrary detention without established time limits, prolonged and indefinite separation of parents and children, conditions of detention and treatment in detention centres, deaths and suicides in detention, and detainees’ access to legal remedies, including limitations in access to civil society legal aid and service providers. These concerns raise questions about China’s adherence to provisions in various human rights treaties it has ratified or signed, including: the Convention on the Rights of the Child (CRC) and the non-detention immigration norm stemming from the “best interests’ principle,” as established by the Committee on the Rights of the Child; and numerous rights and obligations provided in the International Convent on Civil and Political Rights (ICCPR), including the rights to liberty and security of person; freedom from arbitrary detention; freedom from cruel, inhuman or degrading treatment; the right to humane and dignified treatment in detention; freedom from arbitrary interference with privacy, family and home; and the right to manifest one’s religion. There are also concerns regarding transparency and access to adequate information to enable better assessments of gaps in adherence to basic rights and guarantees and which can lead to recommendations that may assist Hong Kong authorities in ensuring that their treatment of all immigration detainees meets internationally accepted standards.
3. DETENTION DATA
3.1 The “Immigration Detention in Hong Kong” data visualisation website, which is a part of an academic research project based at the Chinese University of Hong Kong, provides a broad range of data culled from official government sources concerning immigration detention, mainly—though not exclusively—focusing on Hong Kong’s two main Immigration Department-operated detention facilities: Castle Peak Bay Immigration Centre (CIC) and Ma Tau Kok Detention Centre (MTK). Much of the data used for this submission comes from this website relates specifically to the detention at these two facilities.[ii]
3.2 Importantly, however, the Immigration Ordnance provides that detainees can be held in a broad array of police stations, immigration offices, prisons facilities, and border control points. Other facilities used for immigration detention purposes include a juvenile institution and two formers prisons. The Tuen Mun Children and Juvenile Home is used to commit migrant children under detention orders from the Immigration Department, in addition to juvenile offenders and other minors who are not in immigration proceedings. Hong Kong recently repurposed two prisons for immigration detention, the Tai Tam Gap Correctional Institution (TTGI) and the Nei Kwu Correctional Institution. Both of these are run by the Correctional Services Department instead of the Immigration Department and thus they operate according to prison rules, including application of carceral disciplinary measures and penalties. These operating regulations are harsher than rules prevailing in older detention centres, even though immigration detention is meant to be an immigration control measure rather than a punitive measure.
3.3 Over the past decade (excluding 2020-2022, when Hong Kong was subject to stringent travel restrictions) almost as many people were confined in the Hong Kong’s two main immigration detention centres as were imprisoned each year.[iii] Government data shows that on average more than 10,000 migrants were detained each year between 2017 and 2019.[iv] Between 2020-2022, when travel restrictions were in place, a combined average of nearly 7,000 migrants were admitted to Hong Kong’s two main detention facilities each year. While overall detention numbers appear to have fallen over the past decade, current detention rates in Hong Kong when compared to other jurisdictions—including the UK and Japan, for instance—appear to quite high relative to population. (See Annex 1, Chart 1.)
3.4 Government data shows that between January 2021 and May 2022, 10 to 20 percent of detainees in Hong Kong’s largest immigration detention centre, CIC, had been detained for six months or more (see Annex 1, Chart 2). Anecdotal civil society accounts indicate that many detainees, including detainees with young children, are held for 18 months or more. One immigration detainee, Mr. Vo Van Hung, was held for over five years in detention.[v] While the Hong Kong government’s Detention Policy[vi] states that, inter alia, victims of torture should not be detained, detainees are not screened for torture or trafficking prior to or during detention.
3.5 A significant number of children are detained each year in at the Tuen Mun Children and Juvenile Home, which is operated by the Social Welfare Department. Statistics provided by this department to researchers at the Chinese University of Hong Kong show that between 2011 and 2020 approximately 20 children were detained each year at this facility (see Annex 1, Chart 3). Women also make up a substantial part of the total number of immigration detainees each year, including more than 50 percent of total admissions for the two main detention centres (see Annex 1, Charts 4 and 5).
3.6 In recent years, several deaths and suicides have been recorded in CIC and MTK. On 7 July 2019, a 45 year-old Vietnamese women committed suicide in MTK[vii]; on 21 December 2021 a 46 year-old Indian male died after being found unconscious in CIC[viii]; on 24 February 2022 a 36 year-old female from mainland China committed suicide in CIC[ix]; and on 27 May 2023 a 48 year-old Bangladeshi male died after being found unconscious in CIC.[x]
4. DETENTION LAWS, REGULATIONS, AND CONDITIONS
4.1 Since unification with China in 1997, Hong Kong has been governed by the Basic Law of the Hong Kong Special Administrative Region. The Basic Law establishes the “One Country, Two Systems” framework, according to which Hong Kong retains a degree of autonomy in setting domestic policy, including on immigration issues. Importantly, although China is party to the 1951 Refugee Convention, the rights and duties set out in this convention have not been extended to Hong Kong.[xi]
4.2 Immigration detention in Hong Kong is a form of administrative detention, imposed by the government without judicial scrutiny. The Immigration Ordinance[xii] empowers the government to detain migrants for indeterminate periods of time, without specifying even an indicative end date for detention.[xiii] Amendments to Hong Kong’s Immigration Ordinance in 2021[xiv] made it easier for the government to detain migrants for extended periods of time and substantially undermined local judicial standards on how to determine whether the length of detention is reasonable.[xv]
4.3 Information from former detainees and lawyers indicates that the government does not give detainees sufficient notice or reasoned explanations for why they are in detention. In addition, Hong Kong law does not provide a statutory bail process for immigration detainees.
4.4 Hong Kong law does not protect any persons from immigration detention–resulting in the detention of vulnerable people including unaccompanied and accompanied children, and trafficking victims.
4.4 Detainees who breach rules in Hong Kong’s largest detention centre, CIC, can face punishments, including handcuffing, solitary confinement, and physical and mechanical restraint.[xvi] Media coverage and court judgments[xvii] related to unlawful detention show that CIC staff have used disproportionate force and subjected detainees to degrading treatment in at least some instances. Migrants’ rights CSOs have repeatedly criticised the excessive use of restraint and solitary confinement at CIC.[xviii] Former detainees report a lack of access to menstrual products and adequate health care at CIC. They also report a severe lack of privacy, including toilets without doors and, in some cases, recurring body cavity searches. They have also reported being handcuffed to the bed during medical treatment in hospital. Muslim detainees have reportedly been forced to remove the hijab in some instances. In 2020, a group of CIC detainees went on an extended hunger strike protesting, inter alia, conditions in detention.[xix] Legislators who visited CIC also raised concerns about unsanitary conditions, particularly in the wake of the COVID-19 pandemic.[xx]
4.5 Conditions at the detention centre opened in 2021, Tai Tam Gap Correctional Institute, are reportedly even harsher. Accounts from migrants who were detained at here indicate disproportionate use of punishment, a severe lack of privacy (former detainees report CCTV cameras in the toilets and bathrooms as well as round-the-clock biometric surveillance through electronic bracelets), and frequent unlawful violence by staff. A detainee was reportedly put in solitary confinement for requesting special meal arrangements in relation to observing their religion.
4.6 Statutory amendments in 2021 enabled detention centre staff to carry firearms and other weapons, even though government data from 2010-2021 shows that physical confrontations in detention have been extremely rare,[xxi] and confrontations with staff even rarer (ranging from 0-3 detainee-staff confrontations a year between 2010 and2021).[xxii] These statutory amendments have heightened the risk of disproportionate force in immigration detention facilities.
4.7 In December 2022, the Hong Kong government announced the routinisation of body cavity searches in detention facilities and increased the maximum period of time a detainee could be held in solitary/separate confinement at a stretch from the current maximum of 7 days to 28 days. The issue of body searches by Hong Kong Immigration Department officials has been noted previously, including during China’s 2008 review before the Committee against Torture, during which evidence was submitted showing systematic body searches at the two main detention centres during the 2011-2014 period. (See Annex 1, Chart 6.)
5. LACK OF TRANSPARENCY
5.1 Immigration detention in Hong Kong suffers from a concerning lack of transparency. According to the immigration detention data visualisation project, “Publicly-available data on immigration detention in Hong Kong is extremely scarce. Considering that detention concerns persons deprived of their freedom, the lack of data is markedly concerning.” Other academic research publications have also pointed to a serious dearth of publicly available data.[xxiii] Many Hong Kong government departments, routinely disclose data through the data.gov website,[xxiv] however immigration detention data was not made available until two years ago, and the data that is provided fails to cover numerous critical policies and practices at immigration detention centres.
5.2 Official responses to Access to Information (“ATI”) applications indicate that significant categories of information related to immigration detention are not maintained at all. For example, even in response to ATI queries, little or no information is available about, inter alia, a network of smaller detention facilities or detention at Hong Kong airport[xxv] or the detention of migrant, refugee, and asylum-seeking children in Hong Kong.
6. RELEVANT RECOMMENDATIONS FROM THE 3RD CYCLE UPR
6.1 During the 3rd cycle of the Universal Periodic Review (40th session, February/March 2019), China supported several recommendations relevant to the human rights of migrants, refugees, and asylum seekers, however the specific issue of immigration detention did not garner recommendations. Relevant recommendations included:
- Work towards ratifying the International Covenant on Civil and Political Rights (New Zealand, Uruguay, Mali, Benin, Estonia, Georgia, Latvia, Malta, Namibia) (paras. 28.4, 28.9)
- Respect the rights of all detainees under the relevant human rights instruments and the Vienna Convention on the Law of Treaties, including due process (Sweden) (para. 28.171)
- Develop comprehensive anti-trafficking legislation (Ukraine, Cote d’Ivoire) (paras. 28.173, 28.174) and implement its Action Plan against Human Trafficking, focusing on efforts to provide assistance to victims (Vietnam) (para. 28.172)
- Further improve access to education for children, especially those living in rural areas and the children of migrant workers (Sri Lanka) (para. 28.265)
- Take measures to ensure that all children, especially those of asylum seekers have access to education (Mexico) (para. 28.301)
- Continue to protect the rights of migrant workers through legislation (Nepal) (para. 28.322)
- Increase knowledge of law among workers, especially migrant workers (Bolivia) (para. 28.329)
- Continue to provide basic health-care services for migrants (Madagascar) (para. 28.331)
6.2 During the same cycle of the UPR, China received several relevant recommendations that it merely noted, including:
- Ratify international human rights treaties such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Honduras, Niger, Philippines, Indonesia, Sri Lanka, El Salvador, Kyrgyzstan) (paras. 28.2, 28.14, 28.15), International Convention for the Protection of All Persons from Enforced Disappearance (Ukraine, Japan, France) (paras. 28.7, 28.8), and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Honduras, Denmark, Estonia) (paras. 28.2, 28.13).
6.3 Previously, following the 2nd cycle of the UPR in 2013, China supported recommendations that it consider becoming party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Egypt, Ghana, Guatemala) (paras. 186.24, 186.25, 186.26)
7. RECOMMENDATIONS FROM OTHER HUMAN RIGHTS INSTRUMENTS
7.1 In recent years, several other UN human rights instruments have assessed China’s treatment of asylum seekers, refugees, and migrants and provided relevant recommendations:
- In 2022, the UN Human Rights Committee expressed concern that Hong Kong’s policy for “dealing with asylum-seekers” is based on administrative detention, often for excessive periods of time. It urged authorities to “Avoid the administrative detention of asylum-seekers and migrants, prioritizing non-custodial alternatives and ensuring that detention is used only as a measure of last resort and for the shortest possible period of time, and avoid separating migrant families,” and to “Review the Immigration (Amendment) Ordinance 2021 with a view to bringing its immigration policy and legislation in to line with international human rights and humanitarian standards and international best practice.”[xxvi]
- In 2018, the UN Committee on the Elimination of Racial Discrimination requested that China, including Hong Kong and Macao, provide information and statistics on asylum procedures, disaggregated by nationality.[xxvii]
- The Committee against Torture 2009 recommendations, based on China’s 2008 review before the committee, included several directly related to the treatment of migrants and asylum seekers in Hong Kong, including, notably, with respect to the treatment of victims of trafficking: “Provide specialized training to those with front-line exposure to human trafficking on the identification of victims of trafficking, particularly women arrested for prostitution or immigration violations, and provide such victims with immediate rehabilitation and assistance.” The committee also noted the evidence concerning systematic strip searches of people in various forms of custody, including immigration detainees, however its recommendation that strip searches be “limited to cases where there is a reasonable and clear justification” did not specify norms concerning the treatment of people in administrative immigration custody.
8. RECOMMENDATIONS FOR CONSIDERATION DURING CURRENT UPR CYCLE
- Ensure that immigration detention is only used as a measure of last resort–establishing fair and effective screening processes assessing individual and family vulnerabilities and resiliencies, and considering other arrangements or placements before an detention order is issued.
- In line with the joint CRC/CMW General Comment No. 23/No.4 (2017), the Government of Hong Kong SAR should immediately cease detaining children and their families for reasons related to their migration status. Instead, appropriate non-custodial accommodation must be found for them.
- Cease detaining other at-risk individuals and vulnerable groups, such as victims of trafficking. A comprehensive screening procedure must be put in place to ensure that trafficking victims are identified and protected–including the provision of access to key services such as health care and trauma counselling.
- As recommended during China’s 3rd UPR cycle, take steps to ratify the International Covenant on Civil and Political Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Convention for the Protection of All Persons from Enforced Disappearance.
- As recommended during the 3rd UPR cycle, ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and establish a National Preventive Mechanism.
- Extend the rights and duties set out in the 1951 Refugee Convention to Hong Kong.
- Provide public access to regularly updated statistics concerning migration-related detention procedures and deportations in Hong Kong, including disaggregated information according to gender, age, and reason for detention and/or removal.
- Introduce maximum detention limits in legislation to ensure detention does not become indefinite.
- Investigate and address reports of poor conditions including lack of privacy and poor levels of hygiene in all detention facilities to ensure that conditions are not in consonance with international standards and that detainees are ensured the right to dignity.
- Ensure that all immigration detainees are guaranteed regular access to appropriate health care services, including medical screening upon arrival, access to psychosocial care, and sexual and reproductive health services. Attention must be paid to individuals’ specific health care needs, and necessary hygiene items must be provided. Efforts must also be made to investigate and reform treatment provided to detainees in hospitals–including investigating and ending the practice of handcuffing detainees to their beds.
- Authorities should cease the practice of routine strip and cavity searches in immigration detention facilities. Body searches should only be used where there is a reasonable and clear justification.
- De-emphasise the security orientation of core staff who are in contact with detainees, including by amending legislation to end the requirement for staff to carry firearms and other weapons. Other carceral characteristics should also be removed from all detention facilities–including ending the use of prison rules in re-purposed prisons–in line with the Working Group on Arbitrary Detention’s Deliberation No. 5 (“The conditions of their detention must be humane, appropriate and respectful, noting the non-punitive character of the detention in the course of migration proceedings”)[xxviii].
- Provide unhindered access for civil society organisations to deliver free legal and psychosocial support.
[i] Global Detention Project, “Hong Kong Special Administrative Region,” June 2009, https://www.globaldetentionproject.org/countries/asia-pacific/hong-kong-china
[ii] See: Immigration Detention in Hong Kong, “Data Visualizations,” 2023, https://immigrationdetentionhk.net/en/data-viz/ Importantly, the detention statistics presented on this website differ from statistics published by the Immigration Department because, according to the university researchers, the department has retroactively corrected statistics for many years concerning the MTKDC facility.
[iii] Immigration Detention in Hong Kong, “Data Visualizations,” 2023, https://immigrationdetentionhk.net/en/data-viz/
[iv] Immigration Detention in Hong Kong, “Data Visualizations,” 2023, https://immigrationdetentionhk.net/en/data-viz/
[v] S. Cheng, “The never-ending sentence of Vo Van Hung, the Vietnamese refugee stuck behind bars in Hong Kong,” Hong Kong Free Press, 25 September 2021, https://hongkongfp.com/2021/09/25/the-never-ending-sentence-of-vo-van-hung-the-vietnamese-refugee-stuck-behind-bars-in-hong-kong/
[vi] Security Bureau, Government of HKSAR, “Detention Policy,” https://www.sb.gov.hk/eng/special/pdfs/Detention%20policy-e.pdf
[vii] Government of Hong Kong SAR, “Person under detention committed suicide,” 7 July 2019, https://www.info.gov.hk/gia/general/201907/07/P2019070700938.htm
[viii] Government of Hong Kong SAR, “Unconscious detainee dies in hospital,” 21 December 2021, https://www.info.gov.hk/gia/general/202112/21/P2021122100759.htm
[ix] Government of Hong Kong SAR, “Person under detention commits suicide at Castle Peak Bay Immigration Centre,” 24 February 2022, https://www.info.gov.hk/gia/general/202202/24/P2022022400299.htm
[x] Government of Hong Kong SAR, “Unconscious detainee dies in hospital,” 27 May 2023, https://www.info.gov.hk/gia/general/202305/27/P2023052700727.htm
[xi] UN Committee against Torture (CAT), “Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Concluding Observations of the Committee against Torture: Hong Kong Special Administrative Region,” CAT/C/HKG/CO/4, 19 January 2009, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/403/18/PDF/G0940318.pdf?OpenElement
[xii] Government of HKSAR, Immigration Ordinance (Cap 115), https://www.elegislation.gov.hk/hk/cap115
[xiii] 5 Section 16 and Section 27, Immigration Ordinance, 16 Section 37ZK, Immigration Ordinance
[xiv] Government of HKSAR, Immigration (Amendment) Bill 2020, https://www.legco.gov.hk/yr20-21/english/bc/b202012041/general/b202012041.htm
[xv] S. Chopra et. al., “Immigration Detention in Hong Kong: A Preliminary Analysis,” Chinese University of Hong Kong, 2022, https://immigrationdetentionhk.net/en/research-briefs/
[xvi] Rule 13 and Rule 14, Immigration (Treatment of Detainees) Order (n 27)
[xvii] See: UN Committee Against Torture (CAT) (n 34). See also: R. Carvalho, “Hong Kong rights lawyers allege pattern of mistreatment in immigration detention centre,” South China Morning Post, 12 July 2017, https://www.scmp.com/news/hong-kong/law-crime/article/2102393/hong-kong-rights-lawyers-allege-pattern-mistreatment; RTHK News, “CIC detainees kept naked in detention & received only diapers. Lawyers suspect torture. (青山灣有羈留者須赤 裸僅獲尿片如廁 律師質疑屬酷刑),” 14 December 2020 https://news.rthk.hk/rthk/ch/component/k2/1565171-20201214.htm; Stand News, “Subdued during strip-search and medications withheld: CIC detainees allege abuse (遭赤裸制服、被拒提供藥物 青山灣中心羈留人士控訴受虐 ),” 8 June 2020, https://www.thestandnews.com/society/ 遭赤裸制服-被拒提供藥物-青山灣中心羈留人士控訴受虐/
[xviii] UN Committee Against Torture, “Concluding Observations to Third UNCAT Report (5th report of Hong Kong S.A.R., China),” CAT/C/CHN-HKG/CO/5, 3 February 2016, https://www.cmab.gov.hk/doc/en/documents/policy_responsibilities/CAT_C_CHN-HKG_CO_5_22478_E.pdf
[xix] A. Tsui, “Organising for Change: How We Supported COVID-19–Struck and Hunger Striking Detainees in Hong Kong” in V. Chew, M. Phillips, and M. Yamada Park, (eds.), Covid-19 Impacts on Immigration Detention: Global Responses, International Detention Coalition and HADRI/Western Sydney University, 2020, https://idcoalition.org/wp-content/uploads/2020/10/COVID-19-Impacts-on-Immigration-Detention-Global-Responses-2020.pdf
[xx] L. Westbrook, “Coronavirus: Hong Kong lawyers, lawmakers flag hygiene issues at detention centre, but Immigration says health measures in place,” South China Morning Post, 26 April 2020, https://www.scmp.com/news/hong-kong/health-environment/article/3081544/coronavirus-hong-kong-lawyers-lawmakers-flag; Grassmedia Action, “Asylum seekers and migrant workers speak up about horrific conditions in Hong Kong immigration detention,” 19 July 2020 https://lausan.hk/2020/horrific-conditions-in-hong-kong-immigration-detention/
[xxi] Immigration Detention in Hong Kong, “Data Visualizations,” 2023, https://immigrationdetentionhk.net/en/data-viz/
[xxii] Immigration Detention in Hong Kong, “Data Visualizations,” 2023, https://immigrationdetentionhk.net/en/data-viz/
[xxiii] S. Chopra et al, “Immigration Detention and Vulnerable Migrants in Hong Kong,” 2023, https://immigrationdetentionhk.net/en
[xxiv] Government of Hong Kong SAR, “Data Portal,” https://data.gov.hk/en/
[xxv] Response from the Department of Correctional Services (23 June 2021) to an ATI query (11 March 2021) originally sent to the Immigration Department, https://accessinfo.hk/en/request/number_of_detainees_held_under_i#incoming-1658
[xxvi] UN Human Rights Committee, “Concluding Observations on the Fourth Periodic Report of China,” CCPR/C/CHN-HKG/CO/4, 11 November 2022, https://uhri.ohchr.org/Document/File/20c7a5c7-1f2d-4fe6-a97d-ea48c6288309/8ACFBFD4-8A06-40E3-BA1C-8A8BEEBF9F1E
[xxvii] UN Committee on the Elimination of Racial Discrimination, “Concluding Observations on the Combined Fourteenth to Seventeenth Periodic Reports of China (including Hong Kong, China and Macao, China),” CERD/C/CHN/CO/14-17, 19 September 2018, https://uhri.ohchr.org/Document/File/3360b009-b522-444f-a3ce-ad029c2cbec9/53747551-DB37-41F6-B566-6B252F312385
[xxviii] UN Working Group on Arbitrary Detention, “Revised Deliberation No. 5 on Deprivation of Liberty of Migrants,” 7 February 2018, https://www.ohchr.org/sites/default/files/Documents/Issues/Detention/RevisedDeliberation_AdvanceEditedVersion.pdf
