Stewart Marcus Jonathan v Secretary for Security & Ors

 [2025] HKCFI 1673, Coleman J considered the novel question of whether a former Hong Kong permanent resident fell within the meaning of a person 

‘not having the right to enter and remain in Hong Kong’ 

under s.11 of the Hong Kong Bill of Rights Ordinance (BORO).

The Secretary had issued a deportation order against the applicant, a former Hong Kong permanent resident, on account of his conviction for drug trafficking for which he was sentenced to imprisonment for 2 years and 2 months. In challenging the deportation order, the Applicant contended that it infringed his right to family life under Art 19 of the Bill of Rights. The Secretary countered that the ‘immigration reservation’ in s.11 of the BORO barred the Applicant from relying on the BORO in challenging deportation.

Coleman J held that as a former Hong Kong permanent resident, the Applicant enjoyed the right to enter and remain in Hong Kong and was thus entitled to rely on the BORO in challenging deportation. Despite losing the right of abode, he enjoyed the right to land in Hong Kong and the right not to have any condition of stay imposed upon him under s.2AAA of the Immigration Ordinance.

Coleman J also clarified that the ‘immigration reservation’ should be assessed at the time of the impugned decision against the particular applicant. The mere fact that the Applicant had been deprived of the right to land in Hong Kong under the deportation order did not render him a person ‘

not having the right to enter and remain in Hong Kong

Having decided that the Applicant’s right to family life could be invoked, the Court conducted a proportionality analysis, concluding that the impact on his family ties in Hong Kong had been appropriately weighed by the Secretary and was not disproportionate. So the deportation order was upheld, and the application for judicial review was dismissed.

, instructed by the Department of Justice, for the Secretary for Security and Director of Immigration.

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Members of Chambers Act as Counsel and Amici Curiae on Novel Question as to Former Hong Kong Permanent Residents and the Right to “Enter and Remain” in Hong Kong

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