COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES COVID-19 AND IMMIGRATION DETENTION IN HONG KONG In this article, we discuss the Hong Kong S.A.R. government’s COVID-19 response in relation to irregular migrants and asylum seekers. We provide a brief background on Hong Kong’s legal and policy framework on immigration detention and then go on to highlight the neglect of disadvantaged migrants within the Hong Kong government’s response to the COVID-19 pandemic. We argue that the pandemic has thrown into sharp relief the lack of transparency about immigration detention as well as the vulnerabilities of disadvantaged migrant groups in Hong Kong. LEGAL AND POLICY FRAMEWORK ON IMMIGRATION DETENTION Hong Kong is a special administrative region of the People’s Republic of China with a population of 7.5 million1. As an international financial centre and regional travel hub with a liberal visa regime, Hong Kong hosts significant numbers of short-term visitors as well as white-collar and less privileged migrants2. Notwithstanding the significant number of migrants transiting through or living in Hong Kong in myriad circumstances, Hong Kong has a thin policy framework on refugees, forced migration, and human trafficking. It is not a party to the 1951 Refugee Convention3 or the Protocol to Prevent, Suppress and Punish Trafficking in Persons4 or the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families5. It is a party to the Convention against Torture6 and the International Covenant on Civil and Political Rights7, and its obligations under these treaties have prompted the system currently in place to evaluate non-refoulement claims by migrants. Since 2014, the Hong Kong government has administered the Unified Screening Mechanism (‘USM’) for evaluating whether non-refoulement claimants would be at risk of torture, persecution, ill-treatment or arbitrary deprivation of life if returned to their countries of origin8. The USM process is protracted and the rate of success extremely low. Between the USM’s commencement in March 2014 to June 2020, only 192 out of 31,524 cases have been substantiated; this means the substantiation rate under the USM is 0.6 percent9. The top five countries of origin for substantiated claimants are Pakistan, Yemen, Rwanda, Egypt and Sri Lanka10. By way of comparison, the rate of substantiation for asylum claims ranges from 25 to 60 percent in many high-income countries11. While awaiting the outcome of their claims, protection claimants receive a subsistence allowance and limited access to public services, but are barred from working. This extended, indeterminate precariousness means that some protection claimants might end up working informally in order to support their families, pay for healthcare or meet other expenses. Such individuals, along with other low-income migrants who breach immigration rules, risk detention within Hong Kong’s stringent immigration detention regime. The Immigration Ordinance (Cap 115)12 specifies a number of criminal offences related to breaching immigration rules and grants immigration and police officials wide powers of detention13. It is important to note that immigration detention in Hong Kong is purely administrative and is not automatically subject to judicial scrutiny. An individual seeking to contest the decision to detain them would need to apply to the High Court for habeas corpus. Most detainees face formidable economic and linguistic barriers in applying for habeas corpus. Experience so far suggests that even the few who manage to apply are very unlikely to secure a decision in their favour14. Official figures indicate that 10,053 people were detained in 201915. The number of detainees hovered between 10,000 and 11,000 between 2014 to 201616. This is comparable to (and in some years higher than) the number of prison inmates in Hong Kong in the same year17. Despite these high numbers, the immigration detention system in Hong Kong is startlingly opaque. There is very little publicly available information about the detainee population, detention conditions, and rates and 1 2 3 4 Census and Statistics Department, Government of the Hong Kong S.A.R. Available at https://www.censtatd.gov.hk/hkstat/sub/so20.jsp. Government of the Hong Kong S.A.R., The Facts: Immigration. Available at https://www.gov.hk/en/about/abouthk/factsheets/docs/immigration.pdf. Convention relating to the Status of Refugees, United Nations, Treaty Series, vol. 189, 137. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, G.A. res. 55/25, annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol.I) (2001). 5 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, 6 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Series, vol. 1465, 85. 7 International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, 171. 8 Immigration Department, Government of the Hong Kong S.A.R. Notice to Persons Making Non-refoulement Claims. Available at https://www.immd.gov.hk/pdf/ notice_non-refoulement_claim_en.pdf. This reform was put in place as the result of a series of judicial review decisions. 9 This includes 17,777 cases determined by the Immigration Department at first instance and 13747 cases determined by the Torture Claims Appeal Board on appeal since April 2014. Sources for these statistics include: Secretary for Security, ‘LCQ9: Non-refoulement claims’ (20 May 2020). Available at: https://www.info.gov.hk/ gia/general/202005/20/P2020052000659.htm; Immigration Department, “Statistics on Non-refoulement Claim”. Available at: https://www.immd.gov.hk/eng/ facts/enforcement.html; and email reply to Justice Centre Hong Kong’s access to information request from the Security Bureau dated 13 August 2020. 10 Immigration Department, “Statistics on Non-refoulement Claim”. 11 UNHCR Refugee Data Finder, https://www.unhcr.org/refugee-statistics/download/?url=VDc5; Home Office, United Kingdom, ‘How many people do we grant asylum or protection to?’, 21 May 2020 (asylum grant rate of 54% in the year ending March 2020). Available at https://tinyurl.com/y3nmfe8j. 12 Immigration Ordinance (Cap 115). 13 See for example, Immigration Ordinance (Cap 115) Sections 19(1), 26, 27, 42, and 53(1A)(b). 14 This observation is based upon Justice Centre’s experience advising vulnerable migrants, anecdotal feedback from immigration lawyers, as well as publicly available information on legal proceedings. See also the government’s recent observations in this regard, available at https://www.immd.gov.hk/eng/press/pressreleases/20200813.html. 15 Government of Hong Kong, The Facts: Immigration. Available at https://www.gov.hk/en/about/abouthk/factsheets/docs/immigration.pdf. 16 Immigration Department, Government of HKSAR, ‘Appendix 13 – Enforcement Branch Statistics’ in Annual Report 2016 (Government of HKSAR 2016). Available at https://www.immd.gov.hk/publications/a_report_2016/en/appendices-13.html; Immigration Department, Government of HKSAR, ‘Response to Justice Centre request under the Code on Access to Information’. Available at https://accessinfo.hk/en/request/immigration_detention. 17 Hong Kong Correctional Services website. idcoalition.org | westernsydney.edu.au/hadri 21