British nationality law and Hong Kong

For information on the most prominent type of British nationality in Hong Kong, see British National (Overseas).

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 Kongers with Chinese ancestry as British. The main legal rationale for the PRC's position was that recognising these people as British could be seen as tacit acceptance of a series of treaties which the PRC labels as "unequal" – including the ones which ceded the Hong Kong Island, the Kowloon Peninsula and the land between the Kowloon Peninsula and the Sham Chun River and neighbouring islands (i. e. the New Territories) to the UK. The main political reason was to prevent the vast majority of Hong Kong residents from having any recourse to British assistance (e.g. by claiming consular assistance or protection under an external treaty) after the handover.

Early colonial era

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 Crown 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 rest of the British Empire.

By this definition, anyone born in Hong Kong after it became a British colony in 1842 was a British subject. 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 for acquisition of British subject status by marriage between a foreign woman and a man with British subject status.

British Nationality and Status of Aliens Act, 1914

The British Nationality and Status of Aliens Act, 1914 (now renamed as "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.

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 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" on or after that date was a CUKC. Those who were British subjects on 31 December 1948 were entitled to acquire CUKC status 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 status acquisition.

Commonwealth Immigrants Acts

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 to tighten immigration control for CUKCs into the United Kingdom.

As such, CUKCs connected with Hong Kong were subject to immigration control after 1962.

Finally, under 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 with 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.

British Nationality Act, 1981: Hong Kong Citizens of the United Kingdom and Colonies became British Dependent Territories Citizens

A British passport for a BDTC with connection with Hong Kong

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 Crown colonies 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 and those born in Hong Kong on or after 1983 to a parent settled in Hong Kong are BDTCs. The law also stated that British Citizens or BDTCs 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.

After the Sino-British Joint Declaration

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.

Creation of the British National (Overseas) status: the Hong Kong Act, 1985 and the Hong Kong (British Nationality) Order, 1986

The Hong Kong Act, 1985 created an additional category of British nationality known as British National 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 BN(O). The status was non-transferable and available only by application, and the deadline to apply was 31 December 1997.

British Overseas Citizen status for those who are 'otherwise stateless'

Any Hong Kong BDTCs who failed to register as a BN(O) by 1 July 1997 and would thereby be rendered stateless (generally because they were a non-ethnic Chinese and therefore could not automatically acquire PRC citizenship), automatically became a British Overseas Citizen under the Hong Kong (British Nationality) Order, 1986.[1]

British Nationality (Hong Kong) Act, 1990: British citizenship for 50,000 Hong Kong families

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 (Hong Kong) Act, 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 BDTC (and also ceased to be a BN(O), 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: British citizenship for Hong Kong war wives and widows

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]

British Nationality (Hong Kong) Act, 1997: British citizenship for British Nationals (Overseas) without Chinese ancestry

Another special group of solely Hong Kong British nationals were the non-Chinese ethnic minorities of Hong Kong. They are primarily disapora of Nepal, Indian and Pakistani. 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.

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.

Nationality, Immigration and Asylum Act, 2002: British Overseas Territories Citizen status is not applicable to Hong Kong

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 (BOTC) by virtue of a connection with Hong Kong.

Borders, Citizenship and Immigration Act, 2009: British citizenship for British Nationals (Overseas) not of Chinese descent and not covered by previous provisions

A small group of Hong Kong ethnic minorities had not been eligible for acquiring British 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. These BN(O)s lost their second nationality due to changes in the nationality laws of certain countries and had, therefore, become de facto stateless. 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 view on nationality of Hong Kong residents

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). Where such Chinese citizens resident in Hong Kong undergo a change of citizenship (e.g. in accordance with Article 9 of the Nationality Law, which provides that a person who becomes settled in a foreign country and acquires foreign citizenship loses his or her Chinese citizenship - Hong Kong is not recognised as foreign territory, before or after 1 July 1997), this must be declared to immigration authorities to be recognised under Chinese nationality law. Forms British nationality acquired in Hong Kong (including BN(O) and under the British Nationality Selection Scheme are specifically not recognised as a change of nationality (as they did not occur after the person became settled in a foreign country). Therefore, a Hong Kong resident who had acquired British or foreign citizenship would still be recognised as a Chinese citizen after 1 July 1997 (effectively becoming a dual national except in China (including Hong Kong)), but if that person undergoes a change of nationality under Chinese nationality law and declares the change of nationality to immigration authorities, they would no longer be recognised as a Chinese citizen.

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.[9]

In principle, the rules applying to Chinese citizens resident in Hong Kong are consistent with those applying to other Chinese nationals, although consular administrative practice has varied over time and by location. For example, some (former) Chinese nationals have reportedly been able to enter China on foreign passports and Chinese entry visas, with no demand that they renounce their Chinese citizenship, but on the other hand some consulates would require a locally settled Chinese national to prove that they had not taken up citizenship in the relevant country before they can renew their Chinese passport.

Recent groups eligible for a form of British Nationality

British citizenship for non-ethnic Chinese which were wrongfully denied

In February 2006, in response to representations made by Lord Avebury and Tameem Ebrahim,[10] British authorities announced that six hundred British citizenship applications of ethnic minority children of Indian descent from Hong Kong were wrongly refused.[11] 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.

British Overseas Citizen status/British citizenship for certain ethnic Indians (new Indian law)

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 BN(O) or BOC parent to automatically acquire BOC status at birth under the provisions for reducing statelessness in articles 6(2) and 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.

British Overseas Citizen status/British citizenship for certain ethnic Nepalese (reinterpretation of Nepalese law)

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 BOCs,[12] and can register for British citizenship if they wish to do so.

Future of the British National (Overseas) status: Lord Goldsmith's citizenship review in 2008

Lord Goldsmith discussed the BN(O) issue in his citizenship review in 2008.[13] He regarded the BN(O) status as "anomalous" in the history of British nationality law, but saw no alternative to preserving this status.[14]

See also

Government documents

Legislations

Newspapers/Commentaries

References

  1. ↑ Article 6(1), Hong Kong (British Nationality) Order, 1986
  2. ↑ Text of the British Nationality Act (Hong Kong) 1990 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
  3. ↑ Text of the Hong Kong (War Wives and Widows) Act 1996 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
  4. ↑ A Pasage to Nowhere (Prism Nov 1995) accessed 1 Aug 2010
  5. ↑ Jack Straw, then the Shadow Home Secretary said 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 BN(O) status amounts to British nationality "is pure sophistry".
  6. ↑ The Economist also said that "the failure to offer citizenship to most of Hong Kong's residents was shameful", and "it was the height of cynicism to hand 6 million 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 BDTCs was because if the UK waited until Hong Kong had been disposed of it "would be seen as highly cynical", as The Baroness Symons of Vernham Dean, a Foreign Office minister, has conceded. ("Britain's colonial obligations", 3 July 1997, The Economist)
  7. ↑ Text of the British Nationality (Hong Kong) Act 1997 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
  8. ↑ Lord Avebury in the House of Lords
  9. ↑
  10. ↑ representations made by Lord Avebury and Tameem Ebrahim, 6 December 2004 (Accessed 1 Aug 2010)
  11. ↑ British citizenship applications of ethnic minority children of Indian descent from Hong Kong wrongly refused
  12. ↑ Nepalese passport holders born in Hong Kong before 30 June 1976 are British Overseas citizens
  13. ↑ Lord Goldsmith QC Citizenship Review – Citizenship: Our Common Bond
  14. ↑ "Nonetheless to remove this status without putting something significant in its place would be seen as the British reneging on their promise to the people of Hong Kong. The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship. It is likely that many would not take this up as the prospects economic and fiscal of moving to the UK are not favourable to those well-established in Hong Kong. However, I am advised that this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong, an international treaty between the two countries; and that to secure Chinese agreement to vary the terms of that treaty would not be possible. On that basis, I see no alternative but to preserve this one anomalous category of citizenship": Chapter 4, paragraph 12.

Further reading

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