Section 13 of the Immigration Ordinance: Is the Power Delegable?

Abstract

Section 13 of the Immigration Ordinance provides that the Director of Immigration may authorise any person who landed in Hong Kong unlawfully to remain in Hong Kong. In Lai Yau Chik v Director of Immigration, the Court of First Instance recently held that this power could only be exercised by the Director of Immigration personally. The court appears to have taken the view that the legislature intended to exclude the general principle of delegation in this context. On its terms, this decision has far-reaching consequences for a large number of Hong Kong citizens whose permission to remain in Hong Kong was granted by lesser Immigration Department officials. The author critically assesses this decision in light of the statutory scheme, and the principles of devolution and delegation of statutory powers.