China’s Contentious Control over National Security Laws for Hong Kong - | Hudson McKenzie

China’s Contentious Control over National Security Laws for Hong Kong

On Tuesday 30th June 2020, China has formally made a heavily criticised proposed national security law for Hong Kong into primary legislation. Imminently since it was signed off, this has sparked waves of protests in Hong Kong as well as international scrutiny. Unquestionably, this agitation could pave the way towards an undeclared war between China and other nations, with countries counterattacking in areas such as immigration and trading relationships with China.

What is the New National Security Law?

Under the new law, Hong Kong will relinquish its unique status to the central government in Beijing. Any act of secession, subversion of the central government, terrorism and secret or illegal cooperation with external and foreign forces will be criminalised. 

Most importantly, the law in Beijing will take legal precedence and have sovereignty over any Hong Kong law. This means that the legal system in Beijing will have complete authority over how the law in Hong Kong should be interpreted. In turn, should any Hong Kong law conflict with the law in Beijing, the latter will now take priority.

The law which has previously governed Hong Kong, established by the UK in the form of Article 23 of the Basic Law, enables Hong Kong to have its own independent judiciary and national security measures. This was a condition set by the UK when handing control over Hong Kong back to mainland China in 1997, setting out a more Westernised and democratic system to follow whilst the rest of China remains under control of the Beijing central government.

However, it can be derived from China’s actions that they have every intention of taking back control of Hong Kong, perhaps fully. Under the recently enacted legislation, Beijing will establish a new security office to deal with national security cases and will set up a national security commission in Hong Kong to manage them, which will all be governed a Beijing appointed adviser. In addition, Hong Kong’s chief executive will have complete authority to hear these cases as well as appoint judges at his discretion to hear them, a major threat to judicial independence in Hong Kong.

For more information, please view one of our previous articles setting out the details and additional context at: https://www.hudsonmckenzie.com/the-rise-of-hong-kong-brotherhood/

The International Response and Changes to Immigration:

A month before this legislation was proposed and only in draft legislation, major nations such as the US, UK and Australia expressed their shared concerns should China make it into actual law.

In retaliation to China’s imposition of this new law over Hong Kong, it is evident that they have waged a passive aggressive war against the US and UK. On Monday, Washington already started the process of ending Hong Kong’s unique status on the trade relationship it has with the US.

In a similar fashion, the UK want to illustrate their bowl of contention with its implementation by announcing changes to its current immigration rules by offering million of citizens in Hong a “route to citizenship”. This means that citizens who hold a British National (Overseas) passport (BNO) can “apply to work and study for extendable periods of 12 months and that will itself provide a pathway to future citizenship” according to Dominic Raab, UK Foreign Secretary.

What these immigration amendments will introduce is the removal of some administrative obstacles for BNO passport holders to gain citizenship in the UK. It will also remove the 6 months stay limit in the UK and be extended to a 12-month period. Approximately 300,000 citizens currently hold a BNO passport and approximately 2.9 million people are eligible for one, acting as a major attraction for people to flee Hong Kong.

Although this latest announcement for a future immigration update in respect to Hong Kong provides some benefits, these benefits may only be in small sizes unless the UK decides to completely reform the rights of BNO holders. BNO passport holders are not permitted access to public funds, including government benefits nor can they pass their BNO status to their family members and reside in the UK.

Yet, China still takes the position as the aggressor by continue to warn Britain to steer clear of its affairs and relationship with Hong Kong. The Chinese also maintain that the future immigration changes in the UK will be a violation of the conditions of the handover back in 1997 where it states that BNO passport holders may not enjoy the right to reside in the UK.

Ironically, this argument is illegitimate based on China’s move to take away Hong Kong’s independent judiciary and have control over its national security laws and freedoms. This completely overrides the civil liberties granted to Hong Kong by the UK in 1997 in the Basic Law, such as free speech, right to protest and an independent judicial system.

It is also with a view that this is a political move by the Chinese to suppress any potential opponents or actions against the Communist Party in China. Hong Kong’s holding of a pro-democracy stance is massively threatening to the central authority in Beijing under XI Jinping’s leadership and is a threat that China is ultimately trying to remove.

Should you have any queries regarding the above information or if you require legal assistance with your visa application or immigration related matters, please get in touch with a legal professional at Hudson McKenzie via email at londoninfo@hudsonmckenzie.com or by telephone +44(0)20 3318 5794.

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