Acquiring nationality under Article 6 of the Nationality Law

入境事務處 did not have the information requested.

Dear Immigration Department,

According to the "Explanations of Some Questions by the Standing Committee of the National People’s Congress Concerning the Implementation of the Nationality Law of the People’s Republic of China in the Hong Kong Special Administrative Region":
"The Immigration Department of the Hong Kong Special Administrative Region shall handle all nationality applications in accordance with the Nationality Law of the People’s Republic of China and the foregoing provisions."

Article 6 of the PRC Nationality Law states that:
"Any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality."

In this regard, I now request the official procedure and criteria used by the Hong Kong Immigration Department to verify and approve a claim for Chinese nationality under Article 6 of the PRC Nationality Law.

I further request the number of Article 6 claims received and and the number of such claims approved by the Hong Kong Immigration Department, segregated by year since July 1997.

Yours faithfully,
CC Kan

入境事務處

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Dear Sir/Madam,

Thank you for your e-mail message.

Your e-mail has been forwarded to our relevant Section for appropriate
action.

Best regards,

Mr TANG Yiu-keung
for Director of Immigration

To learn more about the application requirements and procedures of the
most frequently used services provided by the Hong Kong Immigration
Department, you are welcome to visit the Easy Access Playlist
[1]https://www.youtube.com/playlist?list=PL...
at Hong Kong Immigration Department YouTube Channel. The concerned video
clips have Cantonese voice-over supplemented by Chinese or English
subtitles.

show quoted sections

入境事務處

Dear C.C. Kan,

Enquiry on Article 6 of the Nationality Law
I refer to your email of 27 September 2016 inquiring about the official
procedure and criteria used by the Hong Kong Immigration Department to
verify and approve a claim for Chinese nationality under Article 6 of the
Chinese nationality Law and the statistics related to the claim.

Further to our interim reply dated 29 September 2016, please be informed
that we are still processing your request and more time is required to
consult other parties concerned.  A substantive reply will be given as
soon as possible according to paragraph 1.18 of the Code on Access to
Information.

                                                                         
                                                                     

                                                                         
                                                                       
Yours sincerely,
                                                                         
     

                                                                         
                            Ms HUI Yan Yan, Irene
                                                                         
                            for Director of Immigration

入境事務處

Dear Sir/ Madam,
Enquiry on Article 6 of the Nationality Law
                I refer to your email of 27 September 2016 inquiring about
the official procedure and criteria used by the Hong Kong Immigration
Department (“ImmD”) to verify and approve a claim for Chinese nationality
under Article 6 of “中華人民共和國國籍法” (the Nationality Law of the PRC)
(“CNL”) and the statistics related to such claims.  Further to our interim
replies on 29 September 2016 and 17 October 2016, the following is our
substantive reply.

                According to Article 18 of and Annex III to the Basic Law,
the CNL shall be applied in the Hong Kong Special Administrative Region of
the People’s Republic of China (“HKSAR”) from 1 July 1997.  On 15 May
1996, the Standing Committee of the National People’s Congress adopted a
set of explanations titled “全國人民代表大會常務委員會關於《中華人民共和國
國籍法》在香港特別行政區實施的幾個問題的解釋” (Explanations of Some
Questions by the Standing Committee of the National People’s Congress
Concerning the Implementation of the Nationality Law of the People’s
Republic of China in the HKSAR) (“Explanations”).  Under the Explanations,
the Government of the HKSAR is authorised to designate the ImmD as the
authority of the HKSAR responsible for nationality applications.
 Moreover, the ImmD shall handle all nationality applications in
accordance with the CNL and the Explanations.

                Article 6 of the CNL provides for one of the ways in which
a person born in China shall have Chinese nationality at birth.  Article 6
states as follows: “父母無國籍或國籍不明,定居在中國,本人出生在中國,具有
中國國籍。” (Any person born in China whose parents are stateless or of
uncertain nationality and have settled in China shall have Chinese
nationality.)  In other words, any person who satisfies the said criteria
will automatically have Chinese nationality at birth.  Therefore, it is
unnecessary for that person to seek approval or make an application to
become a Chinese national.

                On another note, any person intending to submit an
application, for which Chinese nationality is a requirement or condition
(such as an application for the HKSAR passport), one would have to produce
proof that he/she is a Chinese national under the CNL and the Explanations
where applicable.  The onus is on the applicant to satisfy the ImmD that
he/she is a Chinese national and the ImmD will consider each application
on its own merits.

                Please be informed that the ImmD does not maintain
statistics on claims under Article 6 of the CNL.

       
                                                        Yours faithfully,

                                                               Ms HUI Yan-yan,
Irene
                                                                               
               for Director of Immigration

Dear Immigration Department,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Immigration Department's handling of my FOI request 'Acquiring nationality under Article 6 of the Nationality Law'.

In its reply, ImmD pointed out that under Article 6 of the Chinese Nationality Law, "it is unnecessary for [a] person to seek approval or make an application to become a Chinese national." However, in some circumstances, e.g. HKSAR passport applications, and permanent resident status determination, the ImmD does need to determine whether that person is a Chinese national. Therefore it is most probable that there exists internal guidelines on how Article 6 is to be interpreted in practice.

I seek a review against the refusal to provide such guidelines.

I also seek a review against the refusal to provide the relevant statistics.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://accessinfo.hk/en/request/acquiri...

Yours faithfully,

C.C. Kan

入境事務處

Dear Sir/ Madam,

Thank you for your email of 22 November 2016.  Please be informed that the
matter is receiving our attention and we shall revert to you in due
course.

Yours faithfully,
                                                               
Ms HUI Yan-yan, Irene                                                    
                                         
for Director of Immigration

入境事務處

Dear Sir/ Madam,

I refer to your email of 22 November 2016 asking the Hong Kong Immigration
Department (“ImmD”) to review the refusal to provide guidelines on how
Article 6 of the Chinese Nationality Law (“CNL”) is to be interpreted in
practice and its relevant statistics.  

Further to our interim reply on 25 November 2016, please be informed that
we are still processing your request and more time is required to consult
other parties concerned. A substantive reply will be given as soon as
possible according to paragraph 1.18 of the Code on Access to Information.

                                                                         
                        Yours faithfully,
                                                               

                                                                         
                        Ms TAM Wai-sze                                    
                                                                         
                                                                         
                for Director of Immigration

入境事務處

1 Attachment

Dear Sir/ Madam,

Review of Freedom of Information Request-
Acquiring nationality under Article 6 of the Nationality Law

I refer to your e-mail of 22 November 2016.  You requested a review by the
Hong Kong Immigration Department (“ImmD”) on the refusal to provide (1)
the internal guidelines on how Article 6 of the Nationality Law of the PRC
(“CNL6”) is to be interpreted in practice (on the presumption that “it is
most probable that there exists internal guidelines on how Article 6 is to
be interpreted in practice”), and (2) the relevant statistics on the
number of CNL6 claims received and the number of such claims approved by
ImmD since 1997.  

Please be informed that the review would be treated in accordance with the
Code on Access to Information (“the Code”) (attached).  

Further to our interim replies on 25 November 2016 and 12 December 2016,
your request for a review has been considered by a directorate officer and
I am authorised to give you a substantive reply as follows.  

(1)        Internal Guidelines

        Under paragraph 1.14.2 of the Code, departments are not obliged to
create a record which does not exist.  In the Compendium of Cases where
complaints have been made to The Ombudsman on the non-compliance of the
Code^1 , The Ombudsman commented that where the department in question did
not provide an order or guideline that did not exist, there was no breach
of the Code (Case 16).

In the present case, ImmD does not have any internal guidelines on how
CNL6 is to be interpreted in practice.  Therefore, upon review, we
maintain that we are not in a position to provide you with such records
that do not exist.

(2) Statistics on the number of CNL6 claims cases received and the number
of such claims approved by ImmD since 1997

        Apart from paragraph 1.14.2 of the Code that departments are not
obliged to create a record which does not exist, under paragraph 1.14 of
the Code, departments are not obliged to acquire information not in their
possession.  In the Compendium of Cases where complaints have been made to
The Ombudsman on the non-compliance of the Code^2 , where the requested
records/statistics were not readily available and substantial resources
would be required to create the records, The Ombudsman considered that the
department in question had in not entertaining the request acted according
to the Code and no maladministration was found. ( Case 1 )
               
In the present case, ImmD does not maintain statistics regarding the
number of CNL6 claims received and the number of such claims approved by
ImmD.  Nor can such statistics be produced from physical information
without requiring substantial resources (including the costs to go through
the files of all past application cases). Upon review, we maintain that we
are not in a position to provide you such statistics that do not exist and
cannot be produced without requiring substantial resources as explained
above.

The Ombudsman

Last but not least, I would like to draw your attention to, in accordance
with paragraph 1.26 of the Code, the provisions of the Ombudsman Ordinance
(Cap. 397) which empower The Ombudsman to deal with complaints of
maladministration by or on behalf of an organization.

Yours faithfully,

OR Chung-yuk
for Director of Immigration

^1 See “Code on Access to Information - Precedent Cases” – Case 16
[1]http://www.access.gov.hk/en/referencemat...
^2 See “Code on Access to Information- Precedent cases”- Case 1
[2]http://www.access.gov.hk/en/referencemat...
                                                                         
                   

                                                       

References

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1. http://www.access.gov.hk/en/referencemat...
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