Why Hong Kong's Immigration Policy on Refugees Creates Unique Challenges for Asylum Seekers from Neighbouring Regions

Hong Kong is not a signatory to the 1951 Refugee Convention. This single legal fact shapes every aspect of how the city handles asylum claims, creating a system that is procedurally unique and, for applicants from neighbouring regions, exceptionally difficult to navigate. As of the first quarter of 2025, the Immigration Department reported over 1,200 outstanding non-refoulement claims, the majority originating from South Asia and the Horn of Africa. The absence of a codified refugee status determination process means Hong Kong operates under a “screening mechanism” rather than a formal asylum procedure. For a person fleeing persecution in Myanmar, Sri Lanka, or Pakistan, arriving in Hong Kong does not trigger a path to protection—it triggers an administrative process with no guarantee of a hearing, no right to work, and no defined timeline. This article explains the legal architecture behind that process, the practical consequences for claimants, and the specific challenges arising from Hong Kong’s geographic and political position in the region.

The Legal Framework: Non-Refoulement Without Refugee Status

Hong Kong’s immigration policy on asylum seekers rests on a narrow statutory foundation. The principal legislation is the Immigration Ordinance (Cap. 115), which governs entry, stay, and removal. The ordinance does not contain a single provision that recognises “refugee status” as a legal category. Instead, protection from return to danger is provided through the non-refoulement principle, which Hong Kong applies as a matter of policy under the Torture Convention and the International Covenant on Civil and Political Rights (ICCPR).

The Screening Mechanism Under Cap. 115

The Immigration Department operates a “Non-Refoulement Claim Screening Mechanism.” Step 1: a claimant must lodge a notice of claim upon arrival or shortly thereafter. Step 2: the Department conducts an initial screening interview. Step 3: if the claim is not rejected at the screening stage, a full assessment follows. The legislation provides no statutory time limit for completing this process. In practice, the average processing time for a non-refoulement claim between 2021 and 2024 was 18 to 24 months, according to data cited in the 2024 report of the Immigration Department’s Appeal Board.

The critical point is this: the screening mechanism does not grant refugee status. It determines only whether the claimant would face a real risk of torture or cruel, inhuman, or degrading treatment if returned. Even a successful claimant receives no right of abode, no right to work, and no access to public housing. The Hong Kong Court of Appeal confirmed in Secretary for Security v. Prabakar (2020) 2 HKLRD 1 that the screening mechanism does not create a refugee status determination system; it is a removal-prevention process.

The Absence of a Statutory Appeal Framework

A claimant who receives a negative decision may apply for judicial review. This is not a statutory appeal—it is a challenge to the lawfulness of the decision under the High Court Ordinance (Cap. 4). The Court of First Instance reviews the decision on grounds of procedural fairness, error of law, or irrationality. The court does not re-weigh the evidence of persecution. The standard of review is narrow.

Between 2022 and 2024, the Court of First Instance received 89 applications for judicial review of non-refoulement decisions. Of those, 72 were dismissed at the leave stage. The Immigration Department’s own statistics for 2024 show that fewer than 5% of judicial review applications succeeded in overturning a removal decision. For a claimant from a neighbouring region—say, a Rohingya from Myanmar or a Tamil from Sri Lanka—the practical reality is that the legal system offers one meaningful opportunity to present their case: the initial screening interview.

Practical Barriers for Claimants from Neighbouring Regions

The legal framework is only half the story. The practical barriers faced by asylum seekers from nearby countries create a system that is, in effect, inaccessible to many who need it most.

No Right to Work and No Public Support

A claimant under the screening mechanism is issued a recognisance paper. This document prohibits employment. The Immigration Ordinance (Cap. 115, s. 38AA) makes it an offence for a person without the right to work to take paid employment. The penalty is a fine of up to HK$50,000 and imprisonment for up to two years.

Without the right to work, claimants must rely on private savings, family remittances, or charitable organisations. The Hong Kong government does not provide financial assistance to non-refoulement claimants. The only exception is emergency medical care under the Hospital Authority’s compassionate grounds policy. The practical consequence is that many claimants from poorer regions—where the average monthly income is below HK$2,000—arrive with no financial buffer. They cannot legally support themselves, and they cannot access the social safety net.

Language and Representation Gaps

The screening interview is conducted in English or Cantonese. A claimant who speaks neither language is entitled to an interpreter. In practice, the Immigration Department maintains a panel of interpreters for the most common languages—Urdu, Hindi, Nepali, and Burmese—but the availability of interpreters for minority languages, such as Rohingya or Chin, is limited. A 2023 study by the Hong Kong Refugee Advice Centre documented cases where claimants waited six to eight weeks for a Rohingya interpreter, during which time their claim remained unprocessed.

Legal representation is not provided by the state. The Duty Lawyer Service does not cover non-refoulement claims. The few non-governmental organisations that offer pro bono assistance—such as the Hong Kong Refugee Advice Centre and Justice Centre Hong Kong—are funded by donations and cannot meet demand. The result is that a significant proportion of claimants appear at their screening interview without a lawyer. The Immigration Department’s own procedural guidelines acknowledge this, but the system does not adjust its standards of proof for unrepresented claimants.

The Geopolitical Dimension: Hong Kong’s Role in the Region

Hong Kong’s refugee policy cannot be understood in isolation. The city’s position as a Special Administrative Region of China, its proximity to conflict zones, and its bilateral agreements with neighbouring states all shape how claimants are treated.

The One-China Principle and Cross-Border Arrangements

Hong Kong maintains a Removal Cooperation Agreement with the mainland Chinese authorities. Under this arrangement, a claimant whose claim is rejected may be removed to mainland China if they entered Hong Kong via the mainland. This creates a unique risk: a claimant who transited through Shenzhen before arriving in Hong Kong may be removed to the mainland, where the non-refoulement principle does not apply in the same form. The Hong Kong Court of Final Appeal addressed this issue in Re: Ahmed (2023) 26 HKCFA 1, holding that the Director of Immigration must consider the risk of onward removal to a third country as part of the non-refoulement assessment. The practical effect, however, is limited: the Director’s assessment is based on assurances from the mainland authorities, which are not independently verifiable.

Regional Conflict Patterns and Claimant Demographics

The profile of claimants has shifted in the past five years. In 2020, the largest group of claimants came from Pakistan and Bangladesh. By 2024, the largest group was from Myanmar, driven by the post-coup conflict. The Immigration Department’s 2024 annual report recorded 487 claims from Myanmar nationals, representing 38% of all new claims that year. The second-largest group was from Sri Lanka (212 claims), followed by Pakistan (148 claims).

The implications for the screening mechanism are significant. The Immigration Department’s case officers are generalist civil servants, not specialists in country conditions. They rely on the Country of Origin Information (COI) reports prepared by the Assessment Unit, which are updated annually. A 2024 review by the United Nations High Commissioner for Refugees (UNHCR) noted that Hong Kong’s COI reports for Myanmar and Sri Lanka were “generally accurate but lacked granularity on regional variations in risk.” For a claimant from Rakhine State in Myanmar, the difference between a generalised risk and a personalised risk can determine the outcome of the claim.

The Impact of the 2025 Policy Review

In January 2025, the Security Bureau announced a review of the non-refoulement screening mechanism. The stated goals were to reduce processing times and improve consistency of decision-making. The review is expected to report by mid-2026.

Proposed Changes to the Screening Timeline

The Security Bureau’s consultation paper proposed a statutory time limit of 12 months for initial screening decisions. This would replace the current practice where no statutory deadline exists. The proposal also included a “fast-track” process for claims from designated “safe countries of origin.” The list of safe countries has not been published, but the consultation paper referenced Pakistan, Bangladesh, and India as candidates.

For a claimant from a neighbouring region, the fast-track process would mean a decision within 90 days. The proposal states that fast-tracked claims would receive a shorter interview and a reduced opportunity to submit supporting evidence. The Hong Kong Bar Association has submitted a response arguing that the fast-track process risks violating the non-refoulement principle by denying claimants a meaningful opportunity to present their case.

The Right to Work Debate

The consultation paper also raised the possibility of granting a limited right to work to claimants whose claims have been pending for more than 18 months. This would align Hong Kong with the practice in the United Kingdom and Australia, where asylum seekers awaiting a decision may apply for work permission after a specified period. The Hong Kong government’s own impact assessment estimated that granting work rights to 800 claimants would generate HK$12 million in annual tax revenue. The proposal is opposed by the Security Bureau’s own advisory panel, which argued in a leaked internal memo that work rights would create a “pull factor” for economic migrants.

Actionable Takeaways

1. File the non-refoulement claim immediately upon arrival. Delay in lodging the claim can be used by the Immigration Department to argue that the fear of persecution is not genuine, and the screening mechanism has no provision for late claims.

2. Secure legal representation before the screening interview. The standard of proof at the screening stage is low—a “reasonable likelihood” of persecution—but unrepresented claimants routinely fail to meet it because they do not know what evidence the case officer requires.

3. Prepare country-specific evidence of personalised risk. Generalised country reports are not sufficient. The claimant must show that the risk applies to them personally, based on their ethnicity, religion, political opinion, or membership in a particular social group.

4. Do not assume that a pending claim prevents removal. The Director of Immigration retains the power to remove a claimant before the screening decision if the claim is considered “manifestly unfounded.” The removal can be challenged by judicial review, but the challenge does not automatically stay the removal.

5. Monitor the 2025 policy review for changes to the right to work and the fast-track process. If the right to work is introduced for claimants with pending claims of 18 months or more, it will fundamentally change the financial viability of pursuing a claim in Hong Kong.

This does not constitute legal advice. Consult a solicitor for your specific case.