Detention vs Recognizance: Understanding Immigration Detention in Hong Kong

Imagine this. You are going about your day. There is a knock on the door. Immigration officers are there. They ask to see your identity documents. You are not a permanent resident. You do not have the right of abode. Within hours, you find yourself in a detention facility. No charge. No trial. No clear date for release.

This is immigration detention. It is a reality for many non-permanent residents in Hong Kong. Understanding how it works and what your rights are could make all the difference.

What is immigration detention?

Immigration detention is the policy of holding individuals who are suspected of violating immigration rules in government-run detention facilities. In Hong Kong, it is governed by the Immigration Ordinance (Cap. 115).

Unlike being remanded into jail custody by a court, immigration detention is administrative detention. This means:

- You are not charged with a criminal offence

- You are not put on trial

- You are held at the behest of the executive branch of government (the Immigration Department)

- You have no indication of when you will be released

By contrast, if you are accused of a crime, a court decides whether you should be remanded in custody and for how long. Your guilt must be proved beyond a reasonable doubt. A judge decides the sentence.

Immigration detention is different. It is imposed by the Immigration Department (ImmD) without any judicial scrutiny.

Why does immigration detention exist?

The law requires the ImmD to have a valid purpose for detaining someone. A person should only be placed under immigration detention if:

The ImmD intends to deport or remove them from Hong Kong; and

There are valid reasons for keeping them detained until that happens.

In Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, the Courts endorsed the principle that executive detention must be "clearly justified". Lord Bridge famously stated in R v Home Secretary, ex p Khawaja [1984] AC 74:

"My Lords, we should, I submit, regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on."

Lord Browne-Wilkinson later confirmed that this principle applies equally to everyone within the jurisdiction of the court, whether or not they are a citizen.

The legal limits on detention: the Hardial Singh principles

The leading authority on immigration detention in Hong Kong is Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (PC). This case involved four Vietnamese migrants who had been detained for years under statutory powers authorising detention "pending his removal from Hong Kong". The Privy Council held that:

Where a statute gives the executive power to detain persons pending their removal, it is to be implied that the power can only be exercised during such period as is reasonably necessary to effect removal.

If it becomes apparent that removal is not going to be possible within a reasonable time, further detention is not authorised.

The questions of what constitutes a reasonable period and whether there is sufficient prospect of removal are matters for the court to determine, with the burden on the executive to prove on the balance of probabilities the facts necessary to justify detention.

The Privy Council identified three distinct principles (often called the "Hardial Singh principles"):

- The power of detention is limited to a period which is reasonably necessary to effect removal

- If removal cannot be achieved within a reasonable time, the detainee must be released

- The executive must take all reasonable steps to effect removal within a reasonable time

Detention or recognizance?

The ImmD does not always detain people. Instead, it may issue you a recognizance paper (“Form 8”). Recognizance is an agreement between you and the government. As long as you comply with a set of conditions, you will not be detained.

What is recognizance?

Recognizance is a form of bail. Generally, a person will be released on bail by entering recognisance with or without sureties for a reasonable sum as soon as possible after arrest.

Common conditions include:

Regularly reporting to the ImmD

Living at a specified address

Not leaving Hong Kong without permission

When will the ImmD detain you?

The ImmD has provided a non-exhaustive list of factors relevant to a decision to release or detain. In short, you will normally be released on bail unless you:

Previously absconded, jumped bail or failed to report on recognizance

Have a criminal history of serious offences and pose a threat to public security

Have been convicted of immigration-related offences

Lack a fixed abode, local ties or family in Hong Kong

Previously refused to cooperate with the ImmD in relation to your repatriation

Have overstayed for a long time before arrest or surrender to the ImmD

May be removed soon, so detention facilitates removal arrangements

Were previously deported or removed and returned without permission

Failed to prove your identity and nationality to the ImmD

Do not have a claim (or a pending appeal) for non-refoulement protection 

When might you be released instead?

Conversely, your risk of detention may be lower if you:

Have no record of absconding or failing to attend recognizance appointments

Have strong local ties and/or family connections in Hong Kong

Have a pending torture claim which has not yet been finally determined

Are under the age of 18 or are elderly

Are disabled

Have a serious medical or mental condition that requires close supervision or medical care

Are pregnant

Have a guarantor who is a Hong Kong Permanent Resident

Have been tortured in the past

The legal framework: detention as a last resort

The Immigration Ordinance is premised on immigration detention being used as a last resort, for a reasonable period, and not as a punishment.

Detention only occurs and continues where bail or recognizance is considered inappropriate. The ImmD must justify that detention and its length are reasonable considering all relevant operational and factual circumstances, including those in Section 32(4A) of the Immigration Ordinance.

As the Privy Council emphasised in Tan Te Lam, the courts have a crucial role in safeguarding the rights of detainees. The executive cannot detain indefinitely simply because removal is difficult. If removal cannot be achieved within a reasonable time, the detention becomes unlawful.

What to keep in mind

Immigration detention is administrative detention, not criminal custody

You can be detained without charge and without trial

The ImmD must have a valid reason for detention, usually to deport or remove you

Detention is limited to a period reasonably necessary to effect removal

If removal cannot be achieved within a reasonable time, you must be released

The courts, not the executive, determine what is reasonable

Recognizance (bail) is available if the ImmD considers it appropriate

The ImmD considers many factors when deciding whether to detain or release

Detention should be a last resort and for a reasonable period

If you are at risk of being detained, you should seek legal advice as soon as possible

Our qualified lawyers at Jal N. Karbhari have extensive experience handling immigration detention matters, including recognizance applications, judicial review challenges, and representation before the Torture Claims Appeal Board and the courts. We understand the anxiety and uncertainty that come with detention. Our team is on standby to assist you.

Need help with an immigration issue?

Jal N. Karbhari, Solicitors & Notary — we'll connect you with the right specialist.

Email: inquiries@karbharilaw.com
Phone: +(852) 2367 7577 | Fax: +(852) 2367 7897

Disclaimer: This article is for general informational purposes only and does not constitute legal advice or create a solicitor-client relationship. For advice tailored to your situation, please consult a qualified legal professional.