British nationality law and Hong Kong


British nationality law and Hong Kong

British nationality law as it pertains to Hong Kong has been a unique situation ever since Hong Kong was created a British colony in 1842. With its beginning as a trading port to today's cosmopolitan international financial centre, the territory has attracted refugees, immigrants and expatriates alike searching for a new life.

Citizenship matters were further complicated by the fact that British nationality law had always considered those born in Hong Kong were British subjects, while the People's Republic of China—since its creation in 1949—has never recognised any type of British citizenship for those of Chinese descent. First, recognising British citizenships would imply the PRC and her predecessor Qing China validating the series of Unequal Treaties that ceded Hong Kong. Secondly, the PRC nationality law adopted in 1980 does not allow dual nationality.

With the sovereignty transfer to the PRC imminent in 1997, both the British and the Chinese governments had involved over a decade of negotiations trying to bring about a smooth transition in the government, the economy, and of course, determining citizenship status for almost 6 million people -- of Chinese descent and/or otherwise.

Early colonial era

English common law has the rationale of natural-born citizenship, that which was acquired because British-born subjects would have a "natural allegiance" to the crown as a "debt of gratitude" to the crown for protecting them through infancy. In the spirit of jus soli, natural-born subjects were born within the dominion of the crown which included self-governing dominions and colonies. As the dominion of the crown expanded, British subjects included not only persons within the United Kingdom but also those throughout the British Empire. However, the reverse reasoning would mean that no naturalisation was possible until the introduction of Naturalisation Acts of 1844, 1847 and 1870.

By this definition, anyone born in Hong Kong since 1842 was a British subject. That of course, depended where and when one was born in the territory because the British jurisdiction of Hong Kong did not expand to its current size until 1898 with the leasing of New Territories.

The "Naturalisation of Aliens Act 1847" validated what had been covered in the "Naturalisation Act 1844" (applied only to United Kingdom) to the rest of the dominions and colonies. The Act made provisions for naturalisation as well as allowing acquiring British subject status by marriage between a foreign woman and a British subject man.

British Nationality and Status of Aliens Act 1914

"British Nationality and Status of Aliens Act 1914" came into force on 1 January 1915 codified for the first time the law relating to British nationality. No major change was introduced but it set in law how people associated with Hong Kong -- as part of "His Majesty's dominions" -- would acquire British subject status.

Japanese occupation

During World War II between 25 December 1941 and 15 August 1945, Hong Kong came under Japanese occupation.

The occupation did not affect the British nationality of any person born there during the occupation, except for those whose father (where married to the mother) was an "enemy alien".

After the war, "British Nationality Act 1948" made provision to define the nationality status for those born in occupied territories. The Act stated that British citizenship is obtained by birth except for individuals whose father was an enemy alien and that the birth occurred in a place under enemy occupation.

British Nationality Act 1948

The Commonwealth of Nations heads of government decided in 1948 to embark on a major change in the law of nationality throughout the Commonwealth. It was decided at the conference that the United Kingdom and the self-governing dominions would each adopt separate national citizenships, but retain the common imperial status of British subject. "British Nationality Act 1948" provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of all those British subjects who had a close relationship (either through birth or descent) with the United Kingdom and its remaining colonies. The Act also provided that British subjects could be known by the alternative title Commonwealth citizen.

The Act came into force on 1 January 1949 and stipulated that anyone born in "United Kingdom or a colony" ie: Hong Kong on or after that date was a CUKC. Those who were British Subjects on 31 December 1948 was entitled to acquire CUKC by declaration. The deadline for this was originally 31 December 1949, but was extended to 31 December 1962 by the "British Nationality Act 1958".

British Nationality Acts were passed in 1958, 1964 and 1965, which mainly fine tuned special provisions about CUKC acquisition.

Commonwealth Immigrants Acts

Until the " [http://www.britishcitizen.info/CIA1962.pdf Commonwealth Immigrants Act 1962] ", all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonisation of the 1960s, the United Kingdom passed the "Commonwealth Immigrants Act 1962" and " [http://www.britishcitizen.info/CIA1968.pdf Commonwealth Immigrants Act 1968] " tightened immigration control for CUKCs into the United Kingdom and Islands (the UK, the Channel Islands and the Isle of Man).

Finally in the " [http://www.britishcitizen.info/IA1971.pdf Immigration Act 1971] ", the concept of patriality or right of abode was created. CUKCs and other Commonwealth citizens had the right of abode in the UK only if they, their husband (if female), their parents or their grandparents were connected to the United Kingdom and Islands. This placed the UK in the rare position of denying some of its nationals entry into their country of nationality. However, the concept of patriality was recognised as only a temporary solution to halt sudden wave of migration. The British government embarked on a major reform of the law, resulting in the "British Nationality Act 1981".

These Acts shaped the already increasingly restrictive immigration policies into the UK for Hong Kong residents even before the Sino-British Joint Declaration of 1984.

British Nationality Act 1981

"British Nationality Act 1981" was monumental in not only creating new categories of British citizenship, but also effectively renaming British colonial territories. The Act implied that all British colonial possessions were to be known as British Dependent Territories.

The Act abolished the status of CUKC, and replaced it with three new categories of citizenship on 1 January 1983, namely:
* British citizenship,
* British Dependent Territories citizenship (BDTC), and
* British Overseas citizenship (BOC).

The law implied that those who have CUKC in connection with Hong Kong or those born in Hong Kong on or after 1983 by a parent settled in Hong Kong are BDTC. The law also stated that citizens by descent could not automatically pass on British nationality to a child born outside the United Kingdom or its Dependent Territories unless a parent acquired citizenship otherwise by descent.

After the Sino-British Joint Declaration

Negotiation concerning the future of Hong Kong had started in the late 1970s between Britain and the PRC as the lease on New Territories would end in about 20 years. With the signing of the Sino-British Joint Declaration on 19 December 1984, the future of Hong Kong was set, when the PRC would assume sovereignty of the entire ceded territory of Hong Kong on 1 July 1997.

The Declaration set in motion a series of negotiations between the British and Chinese governments to ensure a smooth transition. Nevertheless, the future of Hong Kong under PRC rule had continued to create uncertainties for Hong Kong residents. It also prompted a series of British Nationality Acts passed specifically for Hong Kong starting in 1985 to control what would be significant migration from the territory to the United Kingdom and elsewhere as well as restoring confidence in people.

There were some 3.5 million residents of Hong Kong with BDTC status by virtue of their connection with Hong Kong. Another 2 million were believed to have been eligible to apply to become BDTCs. Upon handover, they would have lost this status and became solely PRC citizens. At the time, Hong Kong was the largest of the remaining British dependent territories with over 5 million inhabitants, many of whom were well-educated, financially resourceful, and with family connections all over the world. This created possibilities that allowed hundreds of thousands of people to emigrate in the 80s and 90s even with the new British nationality law restrictions.

It is worth noting that the PRC had and still considers that anyone of Chinese descent born in Hong Kong has always been solely a Chinese citizen.

Hong Kong Act 1985

The " [http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/UK%20Hong%20Kong%20Act%201985.pdf Hong Kong Act 1985] " created an additional category of British nationality known as "British National (Overseas)" or BN(O). This new category was available to Hong Kong BDTCs to apply. Any Hong Kong BDTC who wished to do so was able to acquire the (non-transmissible) status of British National (Overseas).

The 1985 Act was brought into effect by the [http://www.britishcitizen.info/HKBNO1986.pdf Hong Kong (British Nationality) Order 1986] . Article 4(1) of the Order provided that on and after 1 July 1987, there would be a new form of British nationality, the holders of which would be known as British Nationals (Overseas). Article 4(2) of the Order provided that adults and minors who had a connection to Hong Kong were entitled to make an application to become British Nationals (Overseas) by "registration".

Becoming a British National (Overseas) was therefore not an automatic nor an involuntary process and indeed many eligible people who had the requisite connection with Hong Kong never applied to become British Nationals (Overseas). Acquisition of the new status had to be voluntary and therefore a conscious act. To make it involuntary or automatic would have been contrary to the assurances given to the PRC government which led to the words "eligible to" being used in paragraph (a) of the [http://www.info.gov.hk/trans/jd/jd6.htm United Kingdom Memorandum] to the Sino-British Joint Declaration. Any person who failed to register as a British Nationals (Overseas) by 1 July 1997 and would thereby be rendered stateless, automatically became a British Overseas citizen under [http://www.britishcitizen.info/StatelessReductionProvisions.pdf article 6(1) of the Hong Kong (British Nationality) Order 1986] .

No person could become a British National (Overseas) automatically by being born in Hong Kong, by descent or by any involuntary means. A person was required to make an application on the prescribed form to the British authorities, and applicants became a British National (Overseas) only when their application was approved and duly registered under the authority of the Home Secretary. The deadline for applications passed in 1997.

British Nationals (Overseas) are Commonwealth citizens so they enjoy most civic rights in the United Kingdom. They are also eligible for a free-of-charge Residence Permit if they wish to study in the UK [http://ukinhongkong.fco.gov.uk/en/visas/how-do-i-apply/] . Police registration (of £34) is not required for BN(O)s residing in the UK (but it is mandatory for HKSAR passport and PRC passport holders). [http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter10/section1/section1.pdf?view=Binary] , [http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter10/section1/annexa.pdf?view=Binary] But BN(O)s are not full British citizens or European citizens and they do not have the right of abode in the United Kingdom. BN(O) differs from other forms of non-citizen British nationalities (such as British subject and British protected person) in that it is not lost automatically when the holder becomes a citizen of another country.

It should be noted that the PRC Government does not recognise British National (Overseas) or British citizen passports issued to former Hong Kong British Dependent Territories citizens that are ethnically Chinese (or possess Chinese nationality), who must obtain a Home Return Permit to enter mainland China. The British Government has already indicated that BN(O)s of ethnic Chinese origin cannot enjoy UK consular protection in Hong Kong, Macau and Mainland China [http://www.gnn.gov.uk/content/detail.asp?NewsAreaID=2&ReleaseID=174346] . However, the UK Government was asked to provide consular assistance to Ching Cheong, a Hong Kong journalist who is detained in the mainland China. Ching Cheong holds a BN(O) passport. However, both British citizen and BN(O) passport holders (even if they hold Chinese citizenship) do not qualify for the Chief Executive election of the Hong Kong SAR [http://www.dab.org.hk/en/main.jsp?content=article-content.jsp&categoryId=1205&articleId=168] . According to the Chinese newspaper article (特首持BNO可變英國公民?) published on the "Hong Kong Economic Times" (Date: 23/5/2001, Page: A31), the HKSAR Government placed this restriction because there were concerns that BN(O)s may be given full citizenship (or the right of abode in the UK) eventually.

The Republic of China (Taiwan) only fully recognises British citizens but does not recognise British Nationals (Overseas) (who are ethnic Chinese). BN(O)s (and HKSAR passport holders) need a landing visa specific for them to enter Taiwan but British Citizens are eligible for the full visa free access programme. (See Entry Permit of HK and Macao Residents (Republic of China on Taiwan)) Taiwan also does not fully recognise the British nationality of naturalised British citizens who were born in China (the PRC, including Hong Kong and Macao). They have additional hurdles to clear under Taiwanese law before being granted residence visas for Taiwan [http://www.fco.gov.uk/en/travelling-and-living-overseas/travel-advice-by-country/asia-oceania/taiwan?ta=entryRequirements&pg=4]

British Nationals (Overseas) are not eligible to participate in the Visa Waiver Program of the United States. The adjusted refusal rate of US B-visas (B1, B1/B2, B2) of BN(O) passport holders in the fiscal year 2006 was 3.1% [http://travel.state.gov/pdf/CombinedRefusalRate.pdf] , which was slightly higher than 3% requirement for the programme. The refusal rate of HKSAR passport was 4.2% in that year. In 2007, the refusal rate of BN(O)s was 2.4%, which is lower than the 3% requirement. However, the refusal rate for HKSAR is 3.4%, which was above the 3% requirement. [http://travel.state.gov/pdf/FY07.pdf] Currently, the United States confers "Hong Kong reciprocity" for BN(O) passport holders (which is the same as the HKSAR passport). The "United Kingdom reciprocity" is not applicable for BN(O)s. However, for statistical reasons, BN(O) has a different country code HOKO in US visas, while the HKSAR passport and the HKSAR Document of Identity have the country code HNK. BN(O)s can enter Guam without a visa while HKSAR passport holders require one. [http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3699.html] , [http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3579.html] , [http://hongkong.usconsulate.gov/niv_guam.html] . It is interesting to note that, for student visa applications (F, M and J) (SEVIS), BN(O) passport holders must fill in the nationality field as "Hong Kong" or "China", while British citizens must fill in the nationality field as "United Kingdom". [http://hongkong.usconsulate.gov/niv_sevis_nationality_and_country_of_birth_codes.html]

Since April 1, 2004, BN(O)s (and HKSAR passport holders) are eligible for visa-free access into Japan. [http://www.info.gov.hk/gia/general/brandhk/0323161.htm] [http://www.mofa.go.jp/region/asia-paci/china/visa0402.html]

This passport is eligible for Electronic Travel Authority of Australia, with the restriction that BN(O)s cannot apply online.

Since early 2007, BN(O)s now also eligible for full visa-free visit to the European Union. When Jack Straw was Foreign Secretary of the UK, he wrote to the European Commission and the EU arguing that British Nationals (Overseas) passport holders should be granted visa free access to the Schengen area. The European Union refuses to grant British Overseas Territories Citizens without right of abode in the UK, British Overseas citizens, British protected persons, British subjects visa-free access based on the ground that these people only have a "tenuous" link with the United Kingdom, as they have no right of abode in the UK and subject to UK immigration controls. However, even BN(O)s currently have no right of abode in the UK though not officially stated that they are subjected to UK immigration controls Fact|date=May 2008, they are now eligible for visa-free access to the Schengen area. [http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=bn%20o&ALL=&ANY=&PHRASE=%22BN%28O%29%22&CATEGORIES=&SIMPLE=BN%28O%29&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=muscat_highlighter_first_match&URL=/pa/cm200607/cmselect/cmfaff/501/501we03.htm#muscat_highlighter_first_match] [http://www.publications.parliament.uk/pa/cm200506/cmselect/cmeuleg/34-xxxvii/34x22.htm] [http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/memo/166/uceu2002.htm] However, HKSAR passport holder started to enjoy this visa-free access in 2001 [http://www.info.gov.hk/gia/general/200104/06/0406208.htm] , which contributed the decline of BN(O) passport.

Besides the USA, a small number of countries offer visa-free access for British citizens but they refuse to extend this arrangement to British National (Overseas). Examples include Ukraine, Kyrgyzstan, Lebanon etc. It is interesting to note that some countries (e.g. Rwanda, Qatar, UAE etc.) accepts BC and HKSAR passports for visa-free travel, but BN(O)s need a visa.

Some countries offer full visa-free access for HKSAR passport holders but BN(O)s and BCs require a pre-arrival visa (or a landing visa). Examples include Indonesia, Turkey, Egypt.

Some countries offer visa-free access for BN(O) and BC passports but not the HKSAR passport. Examples include Guam, Costa Rica, Brazil etc.

See the article British passport for a full-list of visa free access countries of a BN(O) passport.

The British Consulate General in Hong Kong is responsible to maintain the database of BN(O) passport holders. This database can be only accessed by names. The data were collected by the colonial Immigration Department before the handover in 1997. [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60606w01.htm]

The total number of British National (Overseas) (BN(O)) passports issued between April 1997 and the end of 2006 was 794,457, including renewals of full and/or lost passports. As on May 2007, it is estimated that approximately 2.6 million BN(O)s in Hong Kong do not hold a valid passport, as the total number of BN(O)s is 3.4 million. [http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=bn%20o&ALL=&ANY=&PHRASE=%22BN%28O%29%22&CATEGORIES=&SIMPLE=BN%28O%29&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=70322w0001.htm_spmin0&URL=/pa/ld200607/ldhansrd/text/70322w0001.htm#70322w0001.htm_spmin0] Around 13,000 people renewed BN(O) passports in 2007. (港人續領BNO護照大減九成, Page A10, 18/3/2007, Hong Kong Daily News) The CEO of Wing On Travel (永安旅遊) said that 95% of its customers used HKSAR passport and only 5% used BN(O) and other foreign passports.

However, according to the newspaper article in Chinese (人心尚未回歸國人仍需努力) by Leung Chun Ying published on "Mingpao" on 1 June 2007, most university graduates from Hong Kong do state their nationality as "British" or "British National (Overseas)" in their résumés. Leung Chun Ying is a pro-Beijing politician in Hong Kong.

For more information about the nationality issues of Hong Kong people, please refer to the article on Hong Kong Politics.

See also: British consular protection enjoyed by BN(O) passport holders outside the PRC and the UK

British Nationality (Hong Kong) Act 1990

After the Tiananmen Square protests of 1989, many people in Hong Kong began to fear for their future post-1997. Emigration was rampant and a brain-drain was beginning to affect the economy of Hong Kong. To stem the drain, people urged the British Government to grant full British citizenship to all Hong Kong BDTCs — but this request was never accepted. However, in view of Britain's special obligation to Hong Kong as the one dependent territory whose people were unable to exercise the fundamental right of self-determination, it was considered necessary to devise a British Nationality Selection Scheme to enable some of the population to obtain British citizenship to maintain confidence in Hong Kong and to counteract the effects of the emigration of many of its most talented residents. The United Kingdom made provision to grant citizenship to 50,000 families whose presence was important to the future of Hong Kong under the [http://www.hmso.gov.uk/acts/acts1990/Ukpga_19900034_en_1.htm British Nationality Act (Hong Kong) 1990] . Under the Act, the Home Secretary was required to register any person recommended by the Governor of Hong Kong (as well as the applicant's spouse and minor children) as a British citizen. Any person who was registered under the Act automatically ceased to be a British Dependent Territories citizen (and also ceased to be a British National (Overseas), if they had that status) upon registration as a British citizen. No person could be registered under the Act after 30 June 1997.

Hong Kong (War Wives and Widows) Act 1996

Women who have received assurance from the Secretary of State that they would be eligible for settlement in the United Kingdom on the basis of their husband's war service in the defence of Hong Kong may be registered as British citizens if:

* she is resident in Hong Kong; and
* she has not remarried

There is no requirement for the woman to hold (or have held) any form of British nationality.

Women registered as British citizens under this Act acquire British citizenship "otherwise than by descent"
* [http://www.opsi.gov.uk/acts/acts1996/1996041.htm Hong Kong (War Wives and Widows) Act 1996]

British Nationality (Hong Kong) Act 1997

Another special group of solely Hong Kong British nationals were the non-Chinese ethnic minorities of Hong Kong. They are primarily people of Nepalese, Indian & Pakistani descent. After the handover to the People's Republic of China, [http://www.immd.gov.hk/ehtml/chnnationality_2.htm they would not be accepted as inherently being citizens of the PRC] , as they were not of Chinese descent. They would be left effectively stateless — they would have British nationality but no right of abode in the UK, nor a right to claim PRC nationality. Jack Straw, then the Shadow Home Secretary said [http://www.prnewswire.co.uk/cgi/news/release?id=48962 in a letter] to the then Home Secretary Michael Howard dated 30 January 1997 that "common sense and common humanity demand that we give these people full British citizenship. The limbo in which they will find themselves in July arises directly from the agreements which Britain made with China". He further stated that a claim that British National (Overseas) status amounts to British nationality "is pure sophistry". "The Economist" also criticised that "the failure to offer citizenship to most of Hong Kong’s residents was shameful", and "it was the height of cynicism to hand 6m people over to a regime of proven brutality without allowing them any means to move elsewhere." The article also stated that the real reason that the new Labour government still refused to give full British citizenship to other British Dependent Territories Citizens in around 1997 because the UK waited until Hong Kong had been disposed of “would be seen as highly cynical”, as Baroness Symons, a Foreign Office minister, has conceded. ("Britain’s colonial obligations", 3 July 1997, "The Economist")

[http://www.journalism.sfsu.edu/www/pubs/prism/nov95/03.html The ethnic minorities petitioned to be granted full British citizenship.] In response to expressions of concern in both Houses of Parliament, representations by the Hong Kong Legislative Council, the Governor of Hong Kong Chris Patten, the Foreign Secretary Malcolm Rifkind, the [http://www.parliament.uk/parliamentary_committees/foreign_affairs_committee.cfm House of Commons Select Committee on Foreign Affairs] , two former governors of Hong Kong and a former Minister with responsibility for Hong Kong, the Prime Minister John Major discussed the issue with Home Secretary Howard during the week of 27 January to 31 January 1997. Howard appeared to be in a minority in the Cabinet in strongly resisting the grant of British citizenship to the group, and Prime Minister Major suggested that the Cabinet might need to resolve the issue. Michael Howard agreed to consider the matter over the weekend. On 4 February 1997, the [http://www.publications.parliament.uk/pa/cm199697/cmhansrd/vo970204/text/70204w07.htm#70204w07.html_sbhd7 Home Secretary announced in Parliament] that provision would be made to grant full British citizenship (with the right of abode in the UK) to the solely British ethnic minorities of Hong Kong. It was acknowledged that their [http://www.publications.parliament.uk/pa/ld199697/ldhansrd/vo970204/text/70204w02.htm#70204w02_sbhd3 nationality status would be uncertain] after 30 June 1997. The subsequently enacted [http://www.hmso.gov.uk/acts/acts1997/1997020.htm British Nationality (Hong Kong) Act 1997] gives them an entitlement to acquire full British citizenship by making an application to register for that status after 1 July 1997.

Persons with only British Nationals (Overseas) status

A small group of Hong Kong ethnic minorities BN(O) holders (of Nepali, Pakistani and other descent), who only has this status and no other, are still in limbo after the handover. They are often regarded "de facto" stateless. These people do not satisfy the requirements of the [http://www.opsi.gov.uk/acts/acts1997/ukpga_19970020_en_1 British Nationality (Hong Kong) Act 1997] due to one of the reasons below:
# (s)he was not ordinarily resident in Hong Kong the before "relevant date" (4 February 1997); or
# (s)he was under 18 / 21 year of age and were dual national through their parents before the "relevant date".

Their second nationality which they got through their parents has been ceased automatically when they turn 18/21 year of age, and now they are solely British Nationals without any full citizenship.

However, even they do not hold any full citizenship nor the right of abode in the UK, they still have the right of abode or right to land in Hong Kong. Their British passports are renewable and valid for travel. However, they cannot pass their BN(O) nationality to their children. (However, British Overseas citizenship will be conferred to the child if he is otherwise stateless).

The PRC do not recognise them as its nationals. Unlike ethnic Chinese BN(O)s, they enjoy British consular protection in Hong Kong, Macau and mainland China.

Their visa-free access to certain countries may be adversely affected (e.g. Taiwan (not eligible for the Exit & Entry Permit (Taiwan)), Turkey (without HK right of abode)).

Lord Avebury has spoken on behalf of this small group in House of Lords:

cquote|In enacting this amendment, we will remedy the limbo status of probably the last remaining group of solely British nationals who have no other nationality or citizenship, who have not recently and deliberately given up another nationality or citizenship and yet who do not come under the provisions of Section 4B of the 1981 Act despite having no entitlement to acquire the citizenship of any other country. The group in question are solely British nationals overseas who were not ordinarily resident(or under 21 years of age before relevant date) in Hong Kong on 4 February 1997 and can never satisfy the requirements of the 1997 Act. Consistent with the policy that all otherwise stateless British nationals without the right of abode in the United Kingdom should have the entitlement to register as British citizens, this small group of people should be entitled to do so, too. They hold only British passports, their sole identity is British and yet they do not have the right to reside in any British territory.

We have a strong obligation to this group of people under the UN Convention on the Reduction of Statelessness, Article 10.1 of which says:

"Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavours to secure that any such treaty made by it with a State which is not a Party to this Convention includes such provisions".

The 1984 Sino-British joint declaration on Hong Kong made specific provision for the indigenous Chinese population of Hong Kong to be recognised as Chinese citizens. Despite our convention obligations, it made no provision for the non-Chinese, solely British ethnic minorities of Hong Kong to acquire proper citizenship. That was made clear by the current Foreign Secretary, Jack Straw, who, on 30 January 1997, said that, "common sense and common humanity demand that we give these people full British citizenship. The limbo in which they will find themselves in July arises directly from the agreements which Britain made with China".

After the Handover

Chinese nationality law has applied in Hong Kong since the handover on 1 July 1997. Hong Kong BDTC status had ceased to exist and could not be retained. The PRC nationality law was adopted for Hong Kong at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress on 15 May 1996, a year prior to the Hong Kong handover and came into effect on 1 July 1997. The explanations concerning the implementation of the nationality of Hong Kong citizens is that Hong Kong citizens of Chinese descent are Chinese nationals whether or not they have acquired other foreign citizenship(s). In other words, Hong Kong residents of Chinese nationality do not lose their citizenship upon acquiring foreign one(s) in contrast to Article 9 of the law.

Officially, the PRC continues to recognise only Chinese citizenship for its Chinese nationals. Any type of the British and foreign citizenships owned by Chinese nationals are not recognised by the Chinese government and no foreign consular service would be enjoyed by Chinese nationals in Chinese territory. That being said, many Chinese nationals have gained entry into China holding foreign travel documents with proper entry visas without encountering any problem or having to denounce one nationality or the other.Fact|date=August 2007

Dual nationality does not constitute a concern for the British government.

Nationality, Immigration and Asylum Act 2002

In light of the passing of "British Overseas Territories Act 2002", which made provision to substitute the wording of "British Dependent Territories" with "British Overseas Territories" in "British Nationality Act 1981" among other new provisions, further clarification was made even though this Act did not even apply to Hong Kong. Section 14 of the subsequent "Nationality, Immigration and Asylum Act 2002", stated specifically that a person may not be registered as a British Overseas Territories citizen by virtue of a connection with Hong Kong.

Non-Chinese ethnic minorities

In February 2006, British authorities announced that six hundred [http://www.publications.parliament.uk/pa/ld200506/ldlwa/060228wa1.pdf British citizenship applications of ethnic minority children of Indian descent from Hong Kong were wrongly refused] . The applications dated from the period July 1997 onwards. Where the applicant in such cases confirms that he or she still wishes to receive British citizenship the decision will be reconsidered on request. No additional fee will be payable by the applicant in such cases. A [http://www.britishcitizen.info/ReconsiderationRequest.pdf template to request reconsideration] can be downloaded from [http://www.britishcitizen.info/ www.britishcitizen.info] .

Recent changes to India's Citizenship Act 1955 (see Indian nationality law) provide that Indian citizenship by descent can no longer be acquired automatically at the time of birth. This amendment will also allow some children of Indian origin born in Hong Kong after 3 December 2004 who have a British National (Overseas) or British Overseas citizen parent to [http://www.britishcitizen.info/ automatically acquire British Overseas citizenship] at birth (see [http://www.britishcitizen.info/ www.britishcitizen.info] ) under the provisions for reducing statelessness in [http://www.britishcitizen.info/StatelessReductionProvisions.pdf article 6(2) or 6(3) of the Hong Kong (British Nationality) Order 1986] . If they have acquired no other nationality after birth, they will be entitled to [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/41220w04.htm#column_WA123 register for full British citizenship] with right of abode in the UK.

Recent clarification of Nepal citizenship law has meant a number of persons born in Hong Kong who failed to renounce their British nationality before the age of 21 and were previously thought to be citizens of Nepal are in fact solely British. The British Government has recently accepted that [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870243763 certain Nepalese passport holders born in Hong Kong before 30 June 1976 are British Overseas citizens] , and can register for full British citizenship (with right of abode in the UK) if they wish to do so. To obtain British citizenship they must apply to register for British citizenship using Form EM, or Form B(OS) depending on the circumstances of their case.

Lord Goldsmith's Citizenship Review in 2008

Lord Goldsmith discussed the BN(O) issue in his Citizenship Review in 2008 [ [http://www.justice.gov.uk/docs/citizenship-report-full.pdf Lord Goldsmith QC Citizenship Review – "Citizenship: Our Common Bond"] ] . He admitted the BN(O) status is an "anomalous" in the history of British Nationality Law. He does not set any pre-assured stance on the issue whether the BN(O) status should be removed or to be preserved:

The above mainly remarks for Chinese descent BN(O) holders and Lord Goldsmith did not address the small group of "de facto" stateless British Nationals living in Hong Kong in the Citizenship Review study document. The relevant part of the Sino-British Joint Declaration was the Appendix containing an Exchange of Memoranda in which the memorandum from the United Kingdom stated [ [http://www.hklii.org/hk/legis/en/ord/2301/appendix.html HKLII: Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong: Appendix: Exchange of Memoranda] ] :cquote|(a) All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on passport up to 31 December 1997.

(b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or after 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a).

Moreover, the Chinese newspaper Hong Kong Economic Times has cited e-mail replies of immigration authorities of Norway, Sweden, Iceland and Belgium. In their replies, they stated that BN(O) holders may enjoy the same rights as EEA/EU citizens in these countries. Some EU countries do not stamp BN(O) passports now upon entry ["BN(O)又爭居英權?", Page C05, 13/3/2008, "Hong Kong Economic Times"] .

The article also cited part of the Lisbon Treaty regarding nationality: every national of an EU member state should be a national of the European Union. While there is a list of excluded areas, Hong Kong is not included. A commentator of current affairs asserts that full UK citizenship rights will be granted to BN(O)s soon, from the literal reading of the treaty. However, annexed to the Lisbon Treaty was a Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term "nationals" (number 63 among the declarations) saying:cquote|In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in forceby those Treaties, the United Kingdom reiterates the Declaration it made on 31December 1982 on the definition of the term "nationals" with the exception that thereference to "British Dependent Territories Citizens" shall be read as meaning "Britishoverseas territories citizens".

In turn, the ‘Declaration it made on 31December 1982 on the definition of the term “nationals”’ mentioned was that published as a Command Paper in the Treaty Series in1983 (reference TS No 67 1983 Cmnd. 9062), entitled ‘Note from the Government of theUnited Kingdom of Great Britain and Northern Ireland to the Government of the ItalianRepublic concerning a Declaration by the Government of the United Kingdom of GreatBritain and Northern Ireland replacing the Declaration on the Definition of the Term“Nationals” made at the time of signature of the Treaty of Accession of 22 January 1972 bythe United Kingdom of Great Britain and Northern Ireland to the European Communities’ [ [http://www.whatdotheyknow.com/request/declaration_on_31_december_1982 WhatDoTheyKnow.com: Declaration on 31 December 1982 on the definition of the term 'nationals'] ] , the substantive part of which said:cquote
As to the United Kingdom of Great Britain and Northern Ireland the term “nationals”, “nationals of Member States” or “nationals of Member States and overseas countries and territories” wherever used in the Treaty establishing the European Economic Community, the Treaty establishing the European Atomic Energy Community or the Treaty establishing the European Coal and Steel Community or in any of the Community acts deriving from those Treaties, are to be understood to refer to:

(a) British citizens;

(b) Persons who are British subjects by virtue of Part IV of the British Nationality Act 1981 and who have the right of abode in the United Kingdom and are therefore exempt from United Kingdom immigration control;

(c) British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar.

In another newspaper article ["英擬重整國籍類別BN(O)不受惠", Page P07, 12/3/2008, "Hong Kong Economic Journal"] , it is reported that BN(O)s and British Overseas citizens will not benefit from the citizenship review but this statement is yet to be verified.

In the newspaper article published in Sing Tao Daily on September 2008 [ [http://www.hkej.com/template/forum/php/forum_details.php?blog_posts_id=1899 香港英籍人士平權之路] ] , the writer thinks that the British Government is risking a Judicial Review by overtly admitting BN(O)s are treated unfairly in the Citizenship Review. Therefore a nationality reform is not surprising. The writer suggested two possible ways of the nationality reform:
* Enabling BN(O)s to register as British citizens, while retaining the BN(O) status (just like the arrangement for BOTC)
* Give BN(O)s European citizenship but not full British citizenship (just like Gibraltar passport)

Travel documents used in Hong Kong:

* Hong Kong SAR passport
* British Dependent Territories citizen Passport
* Hong Kong Certificate of Identity
* Document of Identity
* Hong Kong Re-entry Permit
* Home Return Permit

ee also

*British nationality law
*British passport
*History of British nationality law
*HKSAR passport
*Chinese nationality law
*Indian nationality law
*Nepal citizenship law
*Commonwealth citizen
*Entry Permit of HK and Macao Residents (Republic of China on Taiwan)
*Right of abode issue, Hong Kong

External links

Government documents

* [http://www.justice.gov.uk/docs/citizenship-report-full.pdf Lord Goldsmith QC Citizenship Review "Citizenship: Our Common Bond"]
* [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870241398 British citizenship information for persons from Hong Kong of Indian origin]
* [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870243763 British citizenship information for persons from Hong Kong of Nepalese origin]
* [http://www.publications.parliament.uk/pa/ld200506/ldlwa/060228wa1.pdf Home Office letter to Lord Avebury, confirming that more than 600 applications for British citizenship from Hong Kong were wrongly refused]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-23a.213.6&s=section%3Awrans+speaker%3A12876#g213.7 which persons born in Hong Kong before 1949 acquired British nationality]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-18a.173.0&s=section%3Awrans+speaker%3A12876#g173.1 which persons born in Hong Kong between 1949 and 1982 acquired British nationality]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-18a.173.3&s=section%3Awrans+speaker%3A12876#g173.4 which persons born in Hong Kong between 1983 and 1997 acquired British nationality]
* [http://www.gnn.gov.uk/content/detail.asp?NewsAreaID=2&ReleaseID=174346 SUPPORTING BRITISH NATIONALS ABROAD: A GUIDE TO CONSULAR ASSISTANCE]
* [http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3699.html Reciprocity Schedule (United Kingdom), United States]
* [http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3579.html Reciprocity Schedule (Hong Kong), United States]
* [http://www.youtube.com/watch?v=zEcwW0yuuwA BN(O) passport TV advertisement in 1994]

Legislations

*British Nationality Acts: [http://www.uniset.ca/naty/BNA1981revd.htm 1981] , [http://www.uniset.ca/naty/BNA1965.htm 1965] , [http://www.uniset.ca/naty/BNA1964.htm 1964] , [http://www.uniset.ca/naty/BNA1958.htm 1958] , [http://www.uniset.ca/naty/BNA1948.htm 1948] , [http://www.uniset.ca/naty/BNA1772.htm 1772] , [http://www.uniset.ca/naty/BNA1730.htm 1730]
* [http://www.britishcitizen.info/HKBNO1986.pdf Hong Kong (British Nationality) Order 1986]
* [http://www.britishcitizen.info/StatelessReductionProvisions.pdf Provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986]

Newspapers/Commentaries

* [http://www.hku.hk/hkcsp/ccex/ehkcss01/issue2_ar_ma_01.htm The Transition of Hong Kong People's Nationality after World War II by Michiko Ai]
* [http://www.dab.org.hk/en/main.jsp?content=article-content.jsp&categoryId=1205&articleId=168 Nationality of the Chief Executive of the SAR] , Democratic Alliance for the Betterment of Hong Kong
* [http://appledaily.atnext.com/template/apple/art_main.cfm?iss_id=20070407&sec_id=4104&subsec_id=11867&art_id=6979745 數字話當年 450萬人持特區護照] , "Apple Daily"
* [http://paper.wenweipo.com/2007/04/20/PL0704200010.htm BNO逐漸走進香港歷史] , "Wen Wei Po"
* [http://www.mingpaosf.com/htm/News/20070601/HK-gfk1.htm BNO護照≠英籍] , "Mingpao"
* [http://www.ilpa.org.uk/submissions/Citizenship%20Review.doc SUBMISSION TO LORD GOLDSMITH FOR THE CITIZENSHIP REVIEW: THE DIFFERENT CATEGORIES OF BRITISH NATIONALITY, Immigration Law Practitioners' Association]

References

Further reading

*張勇、陳玉田:《香港居民的國籍問題》(出版社:三聯書店(香港)) (Chinese)
*《修改英國國籍法的深刻教訓》, Leung Chun Ying, "Mingpao", 16 March 2007
*《人心尚未回歸國人仍需努力》, Leung Chun Ying, "Mingpao", 1 June 2007
*"Britain’s colonial obligations", "The Economist", July 3rd 1997
*"The colonies -- Leftovers", "The Economist", July 3rd 1997


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