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REVIEWING THE UNITED KINGDOM'S ICCPR IMMIGRATION RESERVATION IN HONG KONG COURTS

Published online by Cambridge University Press:  17 June 2014

Michael Ramsden
Michael Ramsden*
Affiliation:
Associate Professor, Faculty of Law, The Chinese University of Hong Kong; Visiting Fellow, University of Auckland (2014)michaelramsden@cuhk.edu.hk.
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Abstract

In 1976 the UK ratified the ICCPR with a reservation that prevented individuals without the right to ‘enter and remain’ in the UK from invoking Article 12(4) and ‘other provisions’ of the covenant. Upon Hong Kong's reunification with China, the ICCPR ‘as applied to Hong Kong’ in accordance with the UK's ratification was constitutionally guaranteed. It will be argued that the legislation implementing the ICCPR does not reflect the constitutional guarantee ‘as applied to Hong Kong’ because it amounts to a blanket exclusion of all ICCPR rights in immigration matters, impermissibly going beyond the UK's reservation.

Keywords

application of ICCPR in Hong Kongmeaning of UK's Article 12(4) ICCPR reservationrelevance of international law to constitutional interpretationtreaty reservationsuse of international law in domestic courts
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 3 , July 2014 , pp. 635 - 663
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 Art 12(4) of the ICCPR provides in full that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’.

2 See Reservation to the International Covenant on Civil and Political Rights made by the United Kingdom of Great Britain and Northern Ireland upon ratification, available at <http://treaties.un.org/doc/db/survey/humanrightsconvs/Chapt_IV_4/reservations/UK.pdf>.

3 See eg the following judicial approaches in minimizing the effect of an immigration reservation entered by the UK to the Convention on the Rights of the Child (CRC), given the broad protective ambit of the ECHR: S v The Secretary of State for the Home Department [2007] EWHC 1654 (Admin), [40]–[41] (Williams J); ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [23]–[25] (Baroness Hale); cf R v Secretary of State, ex parte Gangadeen [1998] Imm AR 106 (Hirst LJ). See also Neulinger v Switzerland [2010] 28 BHRC 706, [131] where the Grand Chamber of the European Court of Human Rights noted that the ECHR should not be read in a vacuum but with regard to general sources of international law, including the CRC.

4 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (1984) 1399 UNTS 61, Annex 1 Section XIII. The Joint Declaration is a treaty: Tang Ping-Hoi v Attorney-General [1987] HKLR 324.

5 Aita Bahadur Limbu v Director of Immigration HCAL 133/1999, 10 December 1999 (CFI) (Stock J); Sampaga Lacdang v Director of Immigration [2000] 2 HKLRD F11 (CFI); Pollard v Permanent Secretary for Security [2011] 3 HKLRD H1.

6 In the rare instances where a judicial review was successful, it was often on the relatively weak basis that the authority had failed to take into account relevant considerations, of which see: Epoch Group Ltd v Director of Immigration [2011] 3 HKLRD H2 (CFI) [52]–[57] (Cheung J).

7 [2011] 2 HKLRD F6 (CFI); [2012] HKEC 1624 (CA).

8 For an analysis, see Ramsden, M and Marsh, L, ‘The “Right to Work” of Refugees in Hong Kong: MA v Director of Immigration’ (2013) 25(3) IJRL 574Google Scholar.

9 Hong Kong courts rely heavily on European public law jurisprudence when interpreting rights under the ICCPR, see generally Chen, A, ‘International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong’ (2010) 4(3) National Taiwan University Law Review 237Google Scholar.

10 R (on the application of Tekle) v Secretary of State for the Home Department [2008] EWHC 3064; Niemietz v Germany [1993] 16 EHRR 97; Sidabras v Lithuania (2006) 42 EHRR 104.

11 Tekle ibid para 34; Lutalo v the Secretary of State for the Home Department [2011] EWHC 2042 (Admin).

12 Ramsden (n 8) 592–3.

13 The deference doctrine will influence the standard of judicial scrutiny even where human rights are engaged, see Elliott, M, ‘Proportionality and Deference: The Importance of a Structured Approach’ in Forsyth, C et al. (eds), Effective Judicial Review: A Cornerstone of Good Governance (OUP 2010) 264Google Scholar.

14 Goodwin, J, ‘The Last Defence of Wednesbury’ (2012) Public Law 445, 450Google Scholar.

15 Indeed, a judicial finding that the Hong Kong immigration authority had to take into account freedom from torture as a right of ‘momentous importance’ in turn led to a legislative overhaul of the then legally flawed torture screening mechanism, see Ramsden, M, ‘Hong Kong's “High Standard of Fairness” Principle and New Statutory Torture Screening Mechanism’ (2013) Public Law 232–9Google Scholar.

16 See eg Saadi v United Kingdom App No 13229/03, 11 July 2006 [44]; Gaygusuz v Austria (1997) 23 EHRR 364; Yoh-Ekale Mwanje v Belgium (10486/10) (2013) 56 EHRR 35; D v UK (1997) 24 EHRR 425; L.C.B. v United Kingdom [1999] 27 EHRR 212 [36]; Moldovan v Romania App Nos 41138/98 and 64320/0, 12 July 2005 [110]; MSS v Belgium and Greece (2011) 53 EHRR 2 [250]–[264].

17 Sales, P and Clement, J, ‘International Law in Domestic Courts: The Developing Framework’ (2008) 124 LQR 388Google Scholar; Hall, S, Foundations of International Law (Lexis Nexis 2012) 173–221Google Scholar and Hong Kong authorities cited there.

18 Art 2, ICCPR; Human Rights Committee, CCPR General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004) UN Doc CCPR CCPR/C/21/Rev 1/Add 13, 4.

19 The Hong Kong Basic Law enshrines the separation of powers doctrine: Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387, 401 (Hartmann J).

20 Chan, J, ‘Hong Kong's Bill of Rights: Its Reception of and Contribution to International and Comparative Jurisprudence’ (1998) 47 ICLQ 306CrossRefGoogle Scholar, 307.

21 For a history, see Swede, R, ‘One Territory – Three Systems? Hong Kong's Bill of Rights’ (1995) 44 ICLQ 358CrossRefGoogle Scholar. The Privy Council has also acknowledged prior to the handover that the HKBORO enjoyed constitutional status in the colony, putting it on a par with the Gambian 1970 constitution, see The Attorney General of Hong Kong v Lee Kwong-kut [1993] 3 WLR 329, 338 (Lord Woolf).

22 Some Chinese scholars argued that ‘as applied to Hong Kong’ refers to the piecemeal implementation of the ICCPR in sector-specific legislation prior to 1997, see Ghai, Y, ‘Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law’ (2nd edn, Hong Kong University Press 1999) 416Google Scholar.

23 The Basic Law was promulgated by the National People's Congress of the PRC on 4 April 1990. By contrast, the HKBORO was enacted on 8 June 1991 by the Hong Kong Legislative Council.

24 Joint Declaration (n 4).

25 There is a possible argument that the ICCPR and the other treaties mentioned in art 39 are entrenched for the purpose of judicial review of any restrictions on those rights, of which see Ramsden, M, ‘Using the ICESCR in Hong Kong Courts’ (2012) 42(3) HKLJ 839Google Scholar.

26 See generally Chan, J, ‘State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights’ (1996) 45 ICLQ 928Google Scholar.

27 Panditaratne, D, ‘Reporting on Hong Kong to UN Human Rights Treaty Bodies: For Better or Worse since 1997?’ (2008) 8(2) HRLRev 295Google Scholar, 296. Indeed, whilst the PRC signed the ICCPR on 15 October 1998, it has yet to ratify it.

28 Pursuant to art 48 ICCPR, only States can accede to the covenant.

29 RV v Director of Immigration [2008] 4 HKLRD 529, 544 (Hartmann J).

30 Third Report by Hong Kong under art 40 of the International Covenant on Civil and Political Rights (October 1989) para 7.

31 Swede (n 21) 374; Yun-Bor, Wong, Autonomy and Protection of Fundamental Rights in the Hong Kong Special Administrative Region (Lexis Nexis 2007) 45Google Scholar.

32 Joint Declaration (n 4) art 3(5).

33 The PRC's reservation states that art 8(1)(b) of ICESCR ‘does not imply the right of trade union federations or confederations to form or join political organizations or bodies established outside the HKSAR’. This went further than the UK's reservation on behalf of Hong Kong to art 8, which provided that the UK ‘reserve the right not to apply sub-paragraph (b) of paragraph 1 in Hong Kong, in so far as it may involve the right of trade unions not engaged in the same trade or industry to establish federations or confederations’. See <http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-3&chapter=4&lang=en>.

34 There is a debate as to whether the Sino-British Joint Declaration requires the PRC to assume international obligations under the ICCPR on behalf of Hong Kong, for which see Chan (n 26) 938–9.

35 Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland, UN Doc CCPR/C/GBR/CO/6 (2008) [7].

36 Ubamaka Edward Wilson v Secretary for Security [2012] HKEC 1757 (CFA) [64] (Ribeiro PJ).

37 See C v Director of Immigration [2011] HKEC 1646 (CA) [90] (Yuen JA), noting that the Immigration Ordinance (Cap 115) confers unfettered discretion. This view was overturned on appeal by the Court of Final Appeal, see [2013] HKEC 428.

38 Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, 14G–H.

39 Bahadur v Director of Immigration [2002] 2 HKLRD 775 [27] (Li CJ).

40 Morris, D, ‘Interpreting Hong Kong's Bill of Rights: Some Basic Questions – Part 1’ (1994) 15(2) Statute Law Review 26–43CrossRefGoogle Scholar.

41 Chan To Foon v Director of Immigration [2001] 3 HKLRD 109, 124F–127J (Hartmann J).

42 Ubamaka (CFA) (n 36) [55]–[70] (Ribeiro PJ).

43 Hai Ho Tak (A Minor) and Cheng Chun Heung & Others v Director of Immigration [1994] 2 HKLR 202, 204, 208 (Mortimer JA); GA v Director of Immigration [2014] HKEC 264 (CFA) [28]–[30], [41] (Ma CJ).

44 ibid.

45 Wong King-Lung v Director of Immigration [1994] 1 HKLR 312, 326 (Jones J); see also Chan Mei Yee v Director of Immigration [2000] HKEC 788 (Cheung J).

46 Ubamaka Edward Wilson v Secretary for Security [2009] HKEC 710 (CFI) [94]–[98] (Reyes J).

47 ibid para 97.

48 Indeed, counsel for the government in Ubamaka conceded this point during submissions, although later retracted such concession on appeal. See Ubamaka (CFI) (n 46) [94] (Reyes J). See further Ramsden, M, ‘The Use of International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation’ (2013) 42(4) CLWR 351Google Scholar.

49 Ubamaka (CFA) (n 36), paras 84–88 (Ribeiro PJ), citing JH Rayner Ltd v Department of Trade and Industry 2 AC 418, 499 (Lord Oliver).

50 Hai Ho Tak (n 43) 208 (Mortimer JA); GA (n 43) [41] (Ma CJ).

51 MA (CA) (n 7) 36, 44–5 (Fok JA).

52 The reservation has also impacted the grounds of conventional judicial review. The Hong Kong courts, embracing Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353, have noted that unincorporated treaties can give rise to legitimate expectations. However, the UK's reservation has defeated any legitimate expectation that individuals may have arising from ratification of the ICCPR: see Chan To Foon (n 41) 128H–130C (Hartmann J).

53 Chan To Foon (n 41) 121 (Hartmann J).

54 Wong King-Lung (n 45) 326–328 (Jones J). Most recently, section 11 precluded a domestic helper from arguing that her right to family life would be infringed were she not granted a Hong Kong Permanent Identity Card and granted the right to stay, see Comilang Milagros Tecson v Commissioner of Registration [2012] HKEC 869.

55 Hai Ho Tak (n 43) 210 (Godfrey JA).

56 Chu Woan Chyi & Others v Director of Immigration [2007] HKEC 553 [62]–[64] (Hartmann J), discussing Lord Denning's dictum in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.

57 MA (CA) (n 7) [37]–[39] (Fok JA).

58 For an examination of the scope of the equivalent British reservation to the CRC, see S (n 3) [47]–[49] (Williams J).

59 Chieng A Lac v Director of Immigration [1997] HKLRD 271, 291 (Litton VP).

60 Ghulam Rbani v Secretary for Justice [2012] HKEC 1659 [53] (Fok JA).

61 Vo Thi Do v Director of Immigration [1998] 1 HKLRD 729, 748F–H (Litton VP).

62 Ubamaka (CFA) (n 36) 109–115 (Ribeiro PJ) discussing Soering v United Kingdom (1989) 11 EHRR 439 and related jurisprudence.

63 ibid, 115 (Ribeiro PJ).

64 Restrictions to the Death Penalty (Arts 4(2) and 4(4) of the American Convention on Human Rights), Advisory Opinion OC-3/83, Inter-American Court of Human Rights Series A No 3 (8 September 1983), para 49; Vienna Convention on the Law of Treaties, art 31(1).

65 ibid.

66 Human Rights Committee, General Comment No 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant (11 April 1994) UN Doc CCPR/C/21/Rev 1/Add 6, para 19.

67 See also the obiter remarks in S (n 3) [47]–[49] (Williams J), that the meaning of a reservation to the CRC (almost identical to the ICCPR reservation at issue here) was said to be insufficiently clear and unambiguous to exclude rights under this instrument, particularly in the context of challenging the legality of administrative detention of those without the right to enter and remain in the UK. But see Drew, S and Nastic, D, ‘The Immigration Reservation to the Convention on the Rights of the Child: An Insuperable Difficulty No More’ (2009) Journal of Immigration Asylum and Nationality Law 119Google Scholar.

68 See ICCPR, ‘Seventh Periodic Report from the United Kingdom, the British Overseas Territories, the Crown Dependencies’ (December 2012) 40.

69 ibid.

70 Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of Movement) (2 November 1999) UN Doc CCPR/C/21/Rev 1/Add 9, para 20.

71 This formulation of words is also found in other human rights instruments, see International Convention on the Elimination of All Forms of Racial Discrimination art 5(d)(ii); Universal Declaration of Human Rights art 13(2); African Charter on Human and Peoples' Rights art 12(2).

72 Emphasis added. Indeed, the Committee of Experts of the Council of Europe concluded that art 12(4) ICCPR was wider in scope than art 3(2) of protocol 4 ECHR, in that the former included Stateless persons and nationals of another State who have close ties with the country in question: see van Dijk, P and van Hoof, GJH, Theory and Practice of the European Convention on Human Rights (2nd edn, Kluwer Law and Taxation Publishers 1990) 147Google Scholar. Furthermore, protocol 4 also gives greater autonomy to States, given that ‘nationality’ must be determined, in principle, with reference to national law: Shchukin v Cyprus (2013) 57 EHRR [144].

73 ibid.

74 Bossuyt, M, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff 1987) 261Google Scholar.

75 Some guidance may be sought in this respect from the ‘genuine and effective link’ test laid out in Nottebohm (Liechtenstein v Guatemala) [1955] ICJ Rep 4.

76 General Comment No 27 (n 70) paras 19–21; Stewart v Canada, Communication No 538/1993, Human Rights Committee, UN Doc CCPR/C/58/D/538/1993 (1996) paras 12.2–12.10. That said, recent English precedent has observed that it would be rare where a non-national is able to successfully invoke art 12(4): MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304, 28 (Kay LJ). For a comparable perspective from Hong Kong, see Expatriate Civil Servants of Hong Kong v Secretary for the Civil Service [1995] 5 HKPLR 490, [26] (Keith J).

77 General Comment No 27 (n 70) para 20.

78 Nystrom (on behalf of Nystrom and Ors) v Australia, Merits, UN Doc CCPR/C/102/D/1557/2007, IHRL 1561 (UNHRC 2011), 18 August 2011, Human Rights Committee [UNHRC] at 7.4.

79 Randolph (on behalf of Randolph) v Togo, Merits, Communication No 910/2000, UN Doc CCPR/C/79/D/910/2000, (2004) 11 IHRR 306, IHRL 1897 (UNHRC 2003), 27 October 2003, Human Rights Committee [UNHRC] at 12.3; Nystrom (n 78) at 7.5. But see Individual Opinion of Committee members, N Rodledeaty, H Keller and M O'Flaherty (dissenting) at 3.1–3.4.

80 For a history, see generally Redish, M, ‘British Immigration and International Protection of Human Rights’ (1969) 10 HarvIntlLJ 150Google Scholar; Plender, R, ‘The Exodus of Asians from East and Central Africa: Some Comparative and International Law Aspects’ (1971) 19 AmJCompL 287Google Scholar.

81 For an account of the reforms, see Hepple, B, ‘Commonwealth Immigrants Act 1968’ (1968) 31 MLR 424CrossRefGoogle Scholar; White, RM and Hampson, FJ, ‘British Nationality Law – Proposed Changes’ (1981) 30 ICLQ 247–59CrossRefGoogle Scholar.

82 See R v Bhagwan [1972] AC 60, 74 (Lord Diplock). For commentary on the rationale for the notion of composite British citizenship, see Evans, JM, Immigration Law (Sweet & Maxwell 1983) 59–60Google Scholar.

83 For a detailed historical analysis, see Lord Lester of Herne Hill QC, ‘Thirty Years On: The East African Asians Case Revisited’ [2002] PL 52 (and the authorities cited there).

84 CI(O)(67) 15, CAB 134/2640, 20 September 1967. Potential incompatibility with art 3(2) of the Fourth Protocol to the European Convention and art 5(b)(ii) of the Convention for the Elimination of All Forms of Racial Discrimination was also raised.

85 CC(68), CAB 128/43, <http://www.nationalarchives.gov.uk/cabinetpapers/cabinet-gov/cab128-post-war-conclusions.htm>.

86 C(68)36, CAB 129/135, 14 February 1968.

87 H(67) 29th meeting, CAB 134/2854.

88 HC Deb, cols 1267–71, 27 February 1968; HC Deb, cols 1581, 1584–5, 28 February 1968; HL Deb, col 906, 29 February 1968.

89 3 EHRR 1973.

90 Lester (n 83) 57. Art 3(3) of Protocol 4 to the ECHR provides that no one shall be deprived of the right to enter the territory of the State of which he is a national. The UK did not sign Protocol 4, see generally Bates, E, ‘British Sovereignty and the European Court of Human Rights’ (2012) LQR 382Google Scholar, 392.

91 ‘Explanatory Notes to the Joint Declaration’, reproduced in Chan, M and Clark, D (eds), Hong Kong Basic Law: Blueprint for ‘Stability and Prosperity’ under Chinese Sovereignty? (Hong Kong University Press 1991)Google Scholar.

92 Ubamaka (CFA) (n 36) [64] (Ribeiro PJ).

93 Restrictions to the Death Penalty (n 64) at 63–4.

94 Emphasis added.

95 Yearbook of the International Law Commission (1966) vol II, 219.

96 It remains unclear why the UK entered this particular reservation to art 13 on behalf of Hong Kong, of which see commentary in Lijnzaad, E, Reservations to UN Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff 1995) 275–6CrossRefGoogle Scholar.

97 Stewart v Canada (n 76) 12.3–12.4.

98 The ‘right of abode’ is a topic of great controversy in Hong Kong and has prompted much contentious litigation. See eg Ng Ka Ling (n 38) (children from mainland China denied the right of abode, even though they had parents who were Hong Kong permanent residents) and Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533 (domestic helpers excluded from permanent residency on the basis that they are not ‘ordinarily resident’).

99 The Immigration Ordinance 1971 defined for the first time different categories of Hong Kong residents: ‘Hong Kong Belongers’, ‘Chinese Residents’ and ‘Resident United Kingdom Belongers’. Chinese Residents had to show seven years' continuous residence in Hong Kong to gain residency. For an analysis, see White, R, ‘Hong Kong: Nationality, Immigration and the Agreement with China’ (1987) 36 ICLQ 483Google Scholar.

100 Liu, A, ‘The Right to Family Life and the Phenomenon of Split Families in Hong Kong’ in Chan, J and Rwezaura, B (eds), Immigration Law in Hong Kong: An Interdisciplinary Study (Sweet & Maxwell 2004)Google Scholar.

101 Hai Ho Tak (n 43) 208 (Nazareth JA).

102 Art 22 of the Basic Law provides that ‘people from other parts of China must apply for approval’ to enter Hong Kong.

103 See also AD for Canada v AG for Ontario [1937] AC 326 (PC).

104 [2000] 2 HKLRD 571, 582A–583G. See also Democratic Republic of Congo v FG Hemisphere Associates LLC [2012] HKEC 20.

105 JH Rayner (n 49) 500D–500F (Lord Oliver).

106 Indeed, the same efficacy concerns justified the Human Rights Committee's power to review reservations: General Comment No 24 (n 66) [18].

107 Chan (n 26), 307.

108 See Re McKerr [2004] UKHL 12 [51] (per Lord Steyn), suggesting that human rights treaties may enjoy a special status justifying immediate effect in domestic legislation.

109 Thomas v Baptiste [2000] 2 A.C. 1 (PC); Lewis v Attorney-General of Jamaica [2000] 3 WLR 1785 (PC).

110 Steyn, Lord, ‘Democracy through law’, EHRLR 723 (2002)Google Scholar; Higgins, R, ‘The Relationship between International and Regional Human Rights Norms and Domestic Law’ (1992) 18(4) CLB 1253–1403Google Scholar; Jennings, Sir R, ‘An International Lawyer Takes Stock’ (1990) 39 ICLQ 513, 524–6Google Scholar.

111 Ubamaka (CFI) (n 46) at [94]–[98].

112 See eg the approach of Judge Lauterpacht in Certain Norwegian Loans (France v Norway) [1957] ICJ Rep 9, 43–66; Interhandel (Switzerland v United States of America) (Preliminary Objections) [1959] ICJ Rep 6 [101]–[118]. See also Goodman, R, ‘Human Rights Treaties, Invalid Reservations, and State Consent’ (2002) 96(3) AJIL 531Google Scholar.

113 General Comment No 24 (n 66) [17].

114 ibid [18].

115 Observations by the Governments of the United States and the United Kingdom on Human Rights Committee General Comment No 24 (52) relating to reservations, (1995) 16 HRLJ 422.

116 ibid.

117 See generally Baylie, E, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’ (1999) 17(2) BerkJIntl Law 277–329Google Scholar.

118 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, 747–49 (Lord Bridge).

119 Jones, O, ‘Customary Non-Refoulement of Refugees and Automatic Incorporation into the Common Law: A Hong Kong Perspective’ (2009) 58(2) ICLQ 443Google Scholar, 405. See eg dictum from New Zealand jurist Kenneth J that national law is to be read consistently with international law even where this appears ‘difficult to reconcile with the seemingly generally applicable wording’: Sellers v Maritime Safety Inspector [1999] 2 NZLR 44, 61). See also Attorney-General v Zaoui [2005] NZSC 38; Ashby v Minister of Immigration [1981] 1 NZLR 223.

120 See eg Ubamaka (CFA) (n 36) [75] (Ribeiro PJ).

121 See eg MA (CFI) (n 7) para 28 (affirmation of Mr Tam).

122 Indeed, the Hong Kong courts have in other areas been prepared to depart from more robust applications of human rights found in comparative jurisprudence where Hong Kong's particular circumstances justify it. Thus, whilst the courts accepted that a public housing tenant's right to a home is interfered with where served with a notice to quit (following Manchester City Council v Pinnock (No 1) [2010] UKSC 45), they have nonetheless applied a less stringent proportionality test given the scarcity of housing in Hong Kong: see Chim Sui Ping v Housing Authority [2012] HKEC 1268, [60] (Thomas Au J).

123 See further Daly, M, ‘Effective Judicial Review: Necessary because of Bad Governance’ in , Forsyth et al. (eds), Effective Judicial Review: A Cornerstone of Good Governance (OUP 2010) 413–15Google Scholar.