Hong Kong News

Nonpartisan, Noncommercial, unconstrained.
Thursday, Feb 02, 2023

Immigration detention in Hong Kong should not feel like jail

Immigration detention in Hong Kong should not feel like jail

Proposed changes include allowing intimate body searches, raising maximum solitary confinement to 28 days and a new detention centre managed by the prisons authority. This is a disturbing move towards making an already opaque, non-judicial system punitive, especially when many have been victims of trafficking or persecution.

The Legislative Council recently discussed coming changes to immigration policy in Hong Kong. The government proposed opening a new immigration detention centre next year. It also proposed allowing intimate body searches at Castle Peak Bay Immigration Centre, Hong Kong’s largest detention centre, and raising the maximum period of solitary confinement to 28 days from the current seven days.

These changes are likely to take effect early next year, after amendments to the relevant rules and regulations are approved by Legco.

These policy shifts might seem minor. But in practical terms, they are significant and frightening for migrants who might be vulnerable to detention. They also raise serious concerns about excessive detention and how detainees are treated.

Immigration detention means holding migrants in closed government facilities for immigration control purposes. For example, a migrant might be detained if they are going to be deported from Hong Kong, pending their removal. Under the Immigration Ordinance, the government has broad powers to detain migrants. Importantly, the decision to place a migrant in custody is purely an administrative one.

It is made entirely by government officials, without independent judicial scrutiny. Moreover, while some categories of immigration detention have time limits, others do not. For example, pending removal from Hong Kong, a person can be detained without knowing when or whether they will be released.

In contrast, if a person is sent to prison for committing a crime, their punishment would be imposed by a court for a specified period of time. Government data shows that under immigration detention, many detainees are held for several weeks, months and, in a few cases, years.

Immigration officers escort unsuccessful non-refoulement claimants as they are repatriated on November 5. In a repatriation operation in early November, the Immigration Department repatriated 26 unsubstantiated non-refoulement claimants.

Unlike prison, immigration detention is not meant to punish those who are detained. It is supposed to be an enforcement measure – an aid to the government in investigating or removing migrants from Hong Kong.

However, since it involves loss of liberty without judicial oversight, it should be used cautiously, as a last resort, for as limited a time as possible. Further, detention rules and conditions should reflect that immigration detention is an administrative enforcement mechanism, not a punitive measure.

The recently announced policy changes lose sight of this crucial difference. The new detention centre, Nei Kwu Correctional Institution, will be managed not by the Immigration Department (which manages the Castle Peak Bay Immigration Centre), but by the Correctional Services Department (CSD), which manages Hong Kong’s prisons.

Nei Kwu would be the second detention centre managed by the CSD. It also runs Tai Tam Gap Correctional Institute, which was converted to a detention centre last year.

This profoundly blurs the boundary between immigration detention and prison. It indicates that (like in the Tai Tam Gap Correctional Institute) prison rules would apply at the new detention facility rather than the rules that apply at the Castle Peak Bay Immigration Centre. Whether in relation to bodily autonomy, privacy, restrictions on movement or punishment, immigration detainees would be treated as if they were prisoners, even though as a matter of law they are not.

Legal amendments last year empowered detention centre staff to wield firearms. The proposals revealed last week will make immigration detention even harsher. Intimate body searches – which might include vaginal and anal searches – are invasive and potentially traumatising. They should have no place in an ostensibly non-punitive government facility, except in extremis. But the coming changes might increase the use of such searches.

Even more startling is the proposed increase of solitary confinement – a disciplinary measure – to a maximum of 28 days. The government terms such confinement as “separate” rather than “solitary”. Softer nomenclature notwithstanding, this proposed change means that detained migrants could be substantially isolated from human contact for up to four weeks at a time.

The toll that solitary confinement takes on the isolated individual is well-documented. Sensory deprivation and lack of human contact, even for short periods, can cause psychological and physical harm to the individual and their family, including children. Recent research in the American context suggests that solitary confinement also mentally and physically taxes staff in custodial institutions.

The harms of solitary confinement are doubly worrying in relation to a highly opaque, non-judicial custodial system like immigration detention in Hong Kong. Most detainees tend to belong to socio-economically disadvantaged groups. Migrants who are socially, economically or politically marginalised often lack the resources and knowledge to make safe, autonomous, legally-compliant choices, and are therefore disproportionately likely to breach immigration regulations.

Once suspected of immigration infractions, they tend to lack access to legal advice and financial resources. Many among them – particularly non-refoulement claimants – have faced persecution in the past.

Many others – domestic workers, for example – have faced exploitative working conditions. Some might be victims of trafficking who have not been officially identified as such. Extended solitary confinement compounds the strain of detention, separation from family, and fear of return on individuals who might already be very vulnerable.

In the past, the Hong Kong government has been lauded for implementing alternatives to immigration detention. The changes proposed last week signal a regrettable move in the opposite direction. Immigration detention is expanding, and becoming more punitive.

The proposed changes sit uneasily with the rights to liberty and freedom from arbitrary detention under the Basic Law and the Hong Kong Bill of Rights. At a minimum, these measures should be subject to public consultation, transparent debate and well-crafted checks and balances.


Related Articles

Hong Kong News
WARNING GRAPHIC CONTENT - US Memphis Police murdering innocent Tyre Nichols
Almost 30% of professionals say they've tried ChatGPT at work
Interpol seeks woman who ran elaborate exam cheating scam in Singapore
Chinese search giant Baidu to launch ChatGPT like AI chatbot.
What is ChatGPT?
Bill Gates is ‘very optimistic’ about the future: ‘Better to be born 20 years from now...than any time in the past’
China is opening up for foreign investors.
Tesla reported record profits and record revenues for 2022
Prince Andrew and Virginia Giuffre Photo Is Fake: Ghislaine Maxwell
Moonwalker Buzz Aldrin Gets Married On His 93rd Birthday
Federal Reserve Probes Goldman’s Consumer Business
China's first population drop in six decades
Microsoft is finalising plans to become the latest technology giant to reduce its workforce during a global economic slowdown
China's foreign ministry branch in Hong Kong urges British gov't to stop the biased and double standards Hong Kong report
China relaxes 'red lines' on property sector borrowing in policy pivot
Tesla slashes prices globally by as much as 20 percent
Japan prosecutors indict man for ex-PM Shinzo Abe murder
Vietnam removes two deputy PMs amid anti-corruption campaign
1.4 Million Copies Of Prince Harry's Memoir 'Spare' Sold On 1st Day In UK
After Failing To Pay Office Rent, Twitter May Sell User Names
FIFA president questioned by prosecutors
Britain's Sunak breaks silence and admits using private healthcare
Hype and backlash as Harry's memoir goes on sale. Unnamed royal source says prince 'kidnapped by cult of psychotherapy and Meghan'
China’s recovery could add 1% to Australia’s GDP: JPMorgan 
Saudi Arabia set to overtake India as fastest-growing major economy this year 
China vows to strengthen financial support for enterprises: official
International medical experts speak out against COVID-19 restrictions on China
2 Billion People To Travel In China's "Great Migration" Over Next 40 Days
Google and Facebook’s dominance in digital ads challenged by rapid ascent of Amazon and TikTok
Flight constraints expected to weigh on China travel rebound
Billionaire Jack Ma relinquishes control of Ant Group
FTX fraud investigators are digging deeper into Sam Bankman-Fried's inner circle – and reportedly have ex-engineer Nishad Singh in their sights
Teslas now over 40% cheaper in China than US
TikTok CEO Plans to Meet European Union Regulators
UK chaos: Hong Kong emigrants duped by false prospectus
China seeks course correction in US ties but will fight ‘all forms of hegemony’, top diplomat Wang Yi says
China will boost spending in 2023
African traders welcome end of China’s Covid travel curbs
France has banned the online sale of paracetamol until February, citing ongoing supply issues
Japan reportedly to give families 1 million yen per child to move out of Tokyo
Will Canada ever become a real democracy?
Hong Kong property brokerages slash payrolls in choppy market
U.S. Moves to Seize Robinhood Shares, Silvergate Accounts Tied to FTX
Effect of EU sanctions on Moscow is ‘less than zero’ – Belgian MEP
Coinbase to Pay $100 Million in Settlement With New York Regulator
Preparations begin for Spring Festival travel rush
Domestic COVID-19 drug effective in trial
HK to see a full recovery, John Lee says in New Year message
Bargain hunters flock to last day of Hong Kong brands and products expo
Hong Kong aims for January 8 reopening of border with mainland China