U.S. Advisory Cautions Businesses Operating in Hong Kong : Immigration Law Blog

On July 16, 2021, the Biden administration issued a Hong Kong Enterprise Advisory highlighting modifications within the political local weather of China and Hong Kong. The advisory, titled “Dangers and Issues for Companies Working in Hong Kong,” was issued by the Treasury, State, Commerce, and Homeland Safety Departments. As well as, the U.S. added seven Chinese language officers working in China’s primary authorities workplace in Hong Kong to the sanction record.

The advisory attracts the eye of companies, people, and different entities, together with educational establishments, analysis service suppliers, and buyers that function in Hong Kong, or have enterprise relations with companies there, to modifications in Hong Kong’s legal guidelines and rules. The change within the authorized panorama is anticipated to have an effect on companies and people with operations in Hong Kong.

The advisory categorized the dangers as follows: dangers for companies following the imposition of the Nationwide Safety Legislation (NSL), information privateness dangers, dangers relating to transparency and entry to vital enterprise data, and dangers for companies with publicity to sanctioned Hong Kong or Individuals’s Republic of China (PRC) entities or people.

Overview and Scope of Nationwide Safety Legislation

In June 2020, the PRC unilaterally imposed the NSL on Hong Kong. The imposition of the NSL has considerably lowered the autonomy and freedom of Hong Kong, opposite to the treaty signed in 1997 after ousting British rule, the place China pledged to deal with Hong Kong otherwise in its capitalist kind. NSL established offenses comparable to secession, subversion, terrorist actions, and collusion with a international nation or exterior components to hazard nationwide safety. Particular judges had been appointed to listen to NSL circumstances.

The NSL has established an Workplace for Safeguarding Nationwide Safety (OSNS) in Hong Kong. This workplace is staffed by PRC safety forces and isn’t topic to Hong Kong’s jurisdiction and judiciary. The circumstances shall be tried by the OSNS, quite than the Hong Kong Courts.

General, the advisory characterised China’s transfer in Hong Kong as dominant and aimed toward making Hong Kong’s legal guidelines arbitrary. The ability granted to the OSNS with a restricted overview of the judicial authority is regarding to the worldwide enterprise group.

Who Might Be Affected by the NSL

Companies which might be working in Hong Kong, in addition to people or companies conducting enterprise on their behalf, are topic to the legal guidelines of Hong Kong, together with the NSL.

Hong Kong has arrested people below the NSL for publishing newspaper articles, collaborating in routine democratic processes, expressing an opinion relating to the federal government or the Chinese language Communist Social gathering, and attending public gatherings. Penalties embody felony fines and imprisonment, together with life imprisonment for sure offenses. Hong Kong officers have additionally arrested international nationals below the NSL, together with one U.S. citizen. Upon arrest, journey paperwork could also be confiscated, and people could also be prevented from departing Hong Kong. Amendments to Hong Kong’s immigration legal guidelines went into impact on August 1, 2021. Hong Kong can place exit bans on people looking for to depart the nation, together with non-residents.

Common Issues over the NSL

Departing from Hong Kong’s custom of respecting information privateness, NSL has granted broad authority to Hong Kong legislation enforcement to conduct wiretaps or digital surveillance on approval of the chief govt quite than the courts, in nationwide security-related circumstances. In circumstances of nationwide safety, Hong Kong legislation enforcement may conduct searches, together with digital gadgets. The NSL additionally permits legislation enforcement to require web providers to delete information and different data related to nationwide safety circumstances, additionally with out judicial oversight.

With rising issues over the change within the enterprise and political local weather between China and Hong Kong, the U.S. Chamber of Commerce has mentioned that the enterprise atmosphere is “extra complicated and difficult,” and that it could assist members navigate the modifications. The Chamber reiterated that Hong Kong stays a invaluable enterprise heart.

Doug Barry, communications Director for the U.S.-China Enterprise Council, who additionally runs a Washington-based group with American firms doing enterprise in China, mentioned “[n]othing within the advisory will come as a shock, aside from maybe to see so many grave dangers introduced on one authorities letterhead.” He mentioned firms will proceed to handle such dangers “for so long as they will,” and “The important thing check is how the legal guidelines are applied.”

To be taught extra about this weblog submit or you probably have another immigration issues, please be happy to contact me at rglahoud@norris-law.com or (484) 544-0022.