such children hit 5 , 000 , the Legislature passed an emergency amendment to the
Immigration Ordinance. The gist of the amendment was that any person who
claimed to have a right of abode in Hong Kong must produce a certificate of
entitlement, which could only be applied for outside Hong Kong. No certificate
would be issued unless the applicants (almost exclusively from the mainland) first
secured an exit approval from the Security Bureau of the PRC. The
constitutionality of this new requirement of a certificate of entitlement was chal-
lenged as being contrary to Article 24 of the Basic Law. In response, the director
argued that the certificate of entitlement system was justified by Article 22 of the
Basic Law, which provided that people from other parts of China must apply for
approval for entry into the HKSAR (‘the immigration issues’).
The plaintiffs also mounted a more fundamental challenge. As a result of a
breakdown in negotiation between China and the United Kingdom on the com-
position of the last Legislative Council before the change-over, the Chinese
government declared that it would appoint a Provisional Legislative Council on
1 July 1997 , which, among its duties, would be responsible for forming the
first Legislative Council of the HKSAR. The amendments to the Immigration
Ordinance in 1997 were enacted by the Provisional Legislative Council.
There was no provision for a Provisional Legislative Council in the Basic Law.
Hence, the plaintiffs argued that the Provisional Legislative Council was unconsti-
tutional, and therefore the laws that it purported to make were of no legal effect
unless they could be upheld by the common-law doctrine of necessity (‘the consti-
tutional issues’).
The court held that the certificate of entitlement scheme was unconstitutional as
it has the effect of vesting in the Security Bureau of the PRC the power to
determine who has the right of abode in Hong Kong. It also refused to refer a
question of interpretation to the NPCSC on the ground that the predominant
provision to be determined in this case was a provision within the internal auton-
omy of the HKSAR. This part of the judgment was effectively reversed by the
NPCSC in its interpretation that was rendered in June 1999 at the request of
the government.
As a result of the NPCSC interpretation, the Court of Final Appeal remarked in
Lau Kong Yungv.Director of Immigrationthat it would have to review the
classification test, the necessity test and the predominant test. Professor Albert
Chen of the University of Hong Kong argued forcefully that the court should apply
the necessity test before the classification test because until it has been identified
which provision needs to be interpreted, it is not possible to apply the classification
test.
20
Instead, the court, by developing the predominant test, held that the pre-
dominant provision to be interpreted was Article 24 , which was not an excluded
(^20) Albert Chen, ‘The Court of Final Appeal’s ruling in the “Illegal Migrant” children case:
a critical commentary on the application of Article 158 of the Basic Law’, in Johannes