-47requirement and relied on as demonstrating the proportionality of that restriction,
paragraph (v) places severe limits on the discretion. It instructs social welfare
officers to tell the applicant: “Go back to where you came from,” unless the
applicant faces “genuine difficulty” going back.
132.
I have described119 as highly unattractive the Director’s practice of
warning potential immigrants who hold OWPs (other than exempted new
arrivals) to stay home and not to come to Hong Kong unless they are able to
support themselves, since it contradicts avowed policies of promoting family
unity for Mainland children with the right of abode; of rejuvenating our ageing
population, and so forth. Condition (v) operates in the same vein. It involves
abdicating responsibility for providing social welfare assistance to indigent new
arrivals who have become Hong Kong residents and who are present in Hong
Kong, unable to meet their basic needs, telling them that they should leave
Hong Kong and go back to where they came from. A discretion that is subject
to such a condition does little to establish the proportionality of the seven-year
restriction of the Article 36 right.
133.
The available statistics tend to confirm that the discretion plays only
a small part in dealing with new arrivals who apply for CSSA but have not met
the residence requirement. Only a small proportion (ranging from 2.4% to 9%)
of such applicants go on to apply for a discretionary waiver. A very high
proportion of those applicants (from 62% to 78%) then withdraw their
applications (one assumes on being told that they do not meet the criteria),
leaving a small number of live applications, most of which are then approved.
The figures are as follows:
119
In Section L.1 above.
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