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British nationality law as it pertains to Hong Kong has been unusual ever since Hong Kong became a British colony in 1842. From its beginning as a sparsely populated trading port to today's cosmopolitan international financial centre of over seven million people, the territory has attracted refugees, immigrants and expatriates alike searching for a new life.
Citizenship matters were complicated by the fact that British nationality law treated those born in Hong Kong as British subjects (although they did not enjoy full rights and citizenship), while the People's Republic of China (PRC) did not recognise Hong Kong Chinese as British. The main reason being that recognising these people as British would be seen as tacit acceptance of a series of treaties which the PRC labels as "unequal" - including the ones which ceded Hong Kong island, the Kowloon peninsula and later Hong Kong's New Territories to the UK.
English common law has the rationale of natural-born citizenship, following the principle of jus soli, in the theory that people born within the dominion of the crown, which included self-governing dominions and colonies, would have a "natural allegiance" to the crown as a "debt of gratitude" to the crown for protecting them through infancy. As the dominion of the British empire expanded, British subjects included not only persons within the United Kingdom but also those throughout the British Empire.
By this definition, anyone born in Hong Kong after it became a British colony in 1842 was a British subject. Then, under the Naturalisation of Aliens Act 1847 expanded what had been covered in the Naturalisation Act 1844, which applied only to people within the United Kingdom, to all its 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.
The British Nationality and Status of Aliens Act 1914 came into force on 1 January 1915, codifying for the first time the law relating to British nationality. No major change was introduced but it set into law how people associated with Hong Kong — as part of "His Majesty's dominions" - would acquire British subject status.
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 citizenship, but retain the common imperial status of British subject. The British Nationality Act 1948 provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of 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," i.e. Hong Kong, on or after that date was a CUKC. Those who were British Subjects on 31 December 1948 were entitled to acquire CUKC by declaration. The deadline for this was originally 31 December 1949, but the deadline 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.
Until 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 Commonwealth Immigrants Act 1968, tightening immigration control for CUKCs into the United Kingdom.
As such, CUKCs connected to Hong Kong were subject to immigration control after 1962.
Finally in the 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. 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 only a temporary solution to halt a sudden wave of migration. The British government later reformed the law, resulting in the British Nationality Act 1981.
These acts shaped an increasingly restrictive immigration policy into the UK for Hong Kong residents even before the Sino-British Joint Declaration of 1984.
The British Nationality Act 1981 was monumental in not only creating new categories of British nationality, but also effectively renaming British colonial territories. After implementation, all British colonial possessions became British Dependent Territories. The act abolished the status of CUKC, and replaced it with three new categories of nationality on 1 January 1983:
The law implied that those who have CUKC status by connection with Hong Kong or those born in Hong Kong on or after 1983 by a parent settled in Hong Kong are BDTCs. The law also stated that citizens by descent could not automatically pass on British nationality to a child born outside the United Kingdom or the dependent territories concerned unless a parent acquired citizenship otherwise than by descent.
Negotiation concerning the future of Hong Kong started in the late 1970s between Britain and the PRC. With the signing of the Sino-British Joint Declaration on 19 December 1984, the future of Hong Kong was set, with the PRC to assume sovereignty of the entire territory of Hong Kong on 1 July 1997.
At that time, 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. After the 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.
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The Hong Kong Act 1985 created an additional category of British nationality known as British National (Overseas) or BN(O). This new category was available only to Hong Kong BDTCs, and any Hong Kong BDTC who wished to do so would be able to acquire the status of British National (Overseas). The status was non-transferable and available only by application, and the deadline to apply was 31 December 1997.
Any person who failed to register as a British National (Overseas) by 1 July 1997 and would thereby be rendered stateless (generally because they were a non-ethnic Chinese and therefore not eligible for PRC citizenship), automatically became a British Overseas Citizen under the Hong Kong (British Nationality) Order 1986.[1]
After the Tiananmen Square massacre in 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, the British did agree to creating the British Nationality Selection Scheme, which granted to a select 50,000 people and their families the ability to obtain full British citizenship without having to fulfill the ordinary requirements, under the British Nationality Act (Hong Kong) 1990.[2] 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.
Women who had 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 they were resident in Hong Kong and had 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 and thus also their children would be British Citizens.[3]
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, they would not be accepted as inherently being citizens of the People's Republic. They would be left effectively stateless — they would have British nationality and permanent residency and right of abode in Hong Kong, but no right of abode in the UK, nor a right to claim PRC nationality, and therefore would not be able to apply for passports from any country.
The ethnic minorities petitioned to be granted full British citizenship,[4] and were backed by several politicians[5] and media[6] The subsequently enacted British Nationality (Hong Kong) Act 1997 [7] gives them an entitlement to acquire full British citizenship by making an application to register for that status after 1 July 1997.
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.
A small group of Hong Kong ethnic minorities had not been eligible for granting citizenship under the British Nationality (Hong Kong) Act 1997 because they were not ordinarily resident in Hong Kong before 4 February 1997 or they were under 18 / 21 years of age, had dual nationality through their parents before the relevant date, but had lost it upon turning 18/21. They could register to become British Citizens under the Borders, Citizenship and Immigration Act 2009 to "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".[8]
Chinese nationality law has applied in Hong Kong since the handover on 1 July 1997. Hong Kong BDTC status ceased to exist and cannot be regained. An interpretation for implementing PRC nationality law for Hong Kong was presented 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) which reinterprets Article 9 of the Nationality Law from its obvious meaning.
This is reflected in the position the Hong Kong Immigration Department currently has on Hong Kong residents (including former residents) of Chinese nationality who were Hong Kong permanent residents immediately before 1 July 1997 and hold foreign passports. Those who were permanent residents before the Handover continue to enjoy right of abode in Hong Kong whether they have remained overseas for long time or hold foreign nationality. They however, will not enjoy foreign consular protection in Hong Kong as long as they do not declare a change of nationality to the Immigration Department [1].
The PRC continues to recognize only Chinese citizenship for its Chinese nationals, similar to the policies enacted in Hong Kong. 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.
In February 2006, in response to representations made by Lord Avebury and Tameem Ebrahim,[9] British authorities announced that six hundred British citizenship applications of ethnic minority children of Indian descent from Hong Kong were wrongly refused.[10] 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.
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 automatically acquire British Overseas Citizen status at birth under the provisions for reducing statelessness in 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 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 certain Nepalese passport holders born in Hong Kong before 30 June 1976 are British Overseas Citizens,[11] and can register for full British citizenship (with right of abode in the UK) if they wish to do so.
Lord Goldsmith discussed the BN(O) issue in his Citizenship Review in 2008.[12] He indicated 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.[13]
BN(O) passport holders, when legally resident in the United Kingdom, enjoy much the same franchise as other British and Commonwealth nationals.[14]
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