Great Expectations meet with a twist

The mainland migrants 4.5-year battle was fueled by expectations based on a January 1999 ruling by the court.

By Nick Easen

HONG KONG, China -- The former British colony's court ruling on mainland migrants living in Hong Kong, a place many call home, has now come to a dramatic close after four and a half years.

The "legitimate expectation" of 5,000 mainland Chinese has been crushed, given 11 weeks notice to leave Hong Kong, or face the security forces.

The territory's highest court, the Final Court of Appeal, ruled that all but 200 of the more than 5,000 mainland Chinese migrants claiming the right to stay in the territory must leave.

Whichever way it went, the ruling would have created controversy for the territory's judiciary and administration.

AUDIO CNN's Mike Chinoy on the latest ruling on mainland Chinese migrants. 1.95 MB / 3min 06sec. WAV sound   PHOTO GALLERY The tense wait outside the Court of Final Appeal    MORE STORIES • HK rules out schooling for migrants (Dec. 2001) • Hong Kong's top court reverses Chinese immigrant-abode ruling (Dec. 1999)    CNN.com Asia More news from our Asia edition

To let the migrants stay would have set a dangerous precedent, the court said, for other migrants to knock on Hong Kong's doors with fresh and legitimate abode cases.

It may have also resulted in the Beijing authorities intervening again, which would have rekindled further controversy and nervousness over how much independence Hong Kong has within China.

Instead Thursday's ruling will send thousands packing towards the border, with a deep sense of distrust of Hong Kong's rule of law.

As the solicitor for the migrants pointed out on local television "if they were the government they could go to the NPC (National People's Congress)," in reference to the 1999 ruling when Beijing overturned a decision in Hong Kong to let migrant Chinese stay in the territory.

Instead the case is closed, but not before one last final appeal with both compassionate pleas to the government and the United Nations in the form of a letter to Secretary General Kofi Annan.

It appeared as if the authorities were quite prepared for the ruling, with the social welfare department ready with counseling services and a telephone hotline for saddened migrants.

This is unlikely to bring much comfort. with human rights groups alerting local media over their concern about how returning migrants will be treated over the border, especially in the light of recent events involving religious groups and prisoners.

Ironically only a small percentage of Hong Kong's residents are even native to the territory. Most have arrived in the last fifty or so years as refugees or economic migrants.

Past rulings

The controversy surrounding the case and the Final Court of Appeal's ruling has a complex history.

It involves several categories of mainland migrants who arrived in Hong Kong in different periods, either illegally or on overstayed tourist visas.

In January 1999 the court's stance on the issue was completely opposite to the current ruling, when it offered residency rights to anyone with a Hong Kong parent.

By June of that year, the government had managed to effectively overturn that ruling, through a reinterpretation by Beijing of Hong Kong's mini constitution known as the Basic Law.

This created a major controversy over the degree to which Hong Kong's rule of law is open to interference by mainland China.

Overturning the ruling damaged the credibility of the territory's top court and increased Hong Kong residents' concerns over the territory's judicial independence.

At this stage the government feared the territory would be swamped by mainland Chinese, looking for jobs and costing the taxpayer millions for new housing, jobs and services.

Original ruling

It was this original January 1999 ruling that the mainland migrants hoped the Final Court of Appeal would uphold this week.

However, this did not occur, the only concession given when the court recognized that authorities had created a "legitimate expectation" among the mainland migrants.

Those who appealed in this case were are all Chinese nationals born in China with at least one parent who is a permanent resident in Hong Kong.

They all maintained that their status should not be affected by Beijing's reinterpretation of the Basic Law, Hong Kong's post-handover constitution, in June 1999.

Yet this was not to be the case.