British National (Overseas)

British National (Overseas), commonly known as BN(O), is one of the major classes of British nationality under British nationality law. Holders of this nationality are British nationals and Commonwealth citizens, but not British citizens. The nationality itself does not grant right of abode anywhere in the world, including United Kingdom or Hong Kong,[1] but most BN(O)s possess either right of abode or right to land in Hong Kong. BN(O)s are subject to British immigration controls and do not have the automatic right to live or work in the United Kingdom.[2]

The British National (Overseas) status was created by the Hong Kong Act 1985 in anticipation of transfer of sovereignty of Hong Kong on 1 July 1997. This nationality was "tailor-made" for Hong Kong residents with British Dependent Territories Citizen (BDTC) status by virtue of their connection with Hong Kong: it allowed the people of Hong Kong to retain a relationship with the United Kingdom after the transfer of sovereignty of Hong Kong to China. BN(O)s enjoy consular protection as British nationals would when travelling outside Hong Kong. However, since most BN(O)s also hold Chinese nationality, they do not enjoy consular protection in Mainland China and Macau, owing to the master nationality rule.[3] From 1 July 1987 to 30 June 1997, nearly 3.4 million of British Dependent Territories Citizens in Hong Kong successfully registered for British National (Overseas).[4] All BDTCs in Hong Kong lost their BDTC status on 1 July 1997, and any BDTC who did not register as a BN(O) automatically acquired Chinese nationality or British Overseas Citizenship, depending on their ethnicity.

Unique characteristics

BN(O) status has the following unique characteristics:[5]

Provisions regarding eligibility to the BN(O) status can be found in section 4 of the Hong Kong (British Nationality) Order 1986,[7] as amended by section 2 of the Hong Kong (British Nationality) (Amendment) Order 1993.[8]

History

Background

By the late 1970s, it had become a public concern in British Hong Kong that the 99-year land lease of the New Territories, a major region north of Kowloon and Hong Kong Island, to the United Kingdom would expire in around 20 years. Governor MacLehose first raised this question during his office in Hong Kong. The public concern immediately resulted in a series of negotiations between the Chinese and British governments in the early 1980s on the future prospect of Hong Kong. After rounds of intense negotiations, both countries signed the Sino-British Joint Declaration on 9 December 1984; the Declaration stated that the British would give up sovereignty and administration in Hong Kong on 1 July 1997, when China resumes her sovereignty over the city.

The signing of this Declaration was initially well received by the international community, despite widespread fear in Hong Kong that Chinese sovereignty would mean authoritarian, one-party rule with a communist economic system. As a response to this fear, the late Chairman Deng Xiaoping came up with the promise of one country, two systems (two systems in operation within the same country). His gesture was able to resume temporarily trust and confidence in the future of Hong Kong. In order to further increase confidence among the British Dependent Territories Citizens in Hong Kong, Margaret Thatcher's government introduced a new class of British nationality, through the Hong Kong Act 1985, which was one of the provisions in the United Kingdom Memorandum to the Sino-British Joint Declaration. This would allow the British nationals of Hong Kong to retain an appropriate relationship with the United Kingdom after 1 July 1997.

Creation of the nationality: Hong Kong Act 1985

The new class of British nationality, known as British National (Overseas), was created by the Hong Kong Act 1985. This new type of nationality would be granted for life upon successful registration but non-hereditary. British Dependent Territories Citizens who chose not to register immediately would remain as such, but ceased to be a British national upon their BDTC's expiry on 1 July 1997.

British National (Overseas) passport advertisement by the British Consulate-General, Hong Kong and Macao in 2004.

The 1985 Act was brought into effect by the Hong Kong (British Nationality) Order 1986. Article 4(2) of the Order 1986 gave the provision that adults and minors who had a connection to Hong Kong were entitled to register as British Nationals (Overseas).[lower-alpha 1]

Becoming a British National (Overseas) was therefore neither an automatic nor an involuntary process. Therefore, some eligible persons who had the requisite connection with Hong Kong never applied to become British Nationals (Overseas). To make it involuntary or automatic would have been contrary to the assurances as given to the Chinese government; as a result, the words "eligible to" were chosen for paragraph (a) of the United Kingdom Memorandum to the Sino-British Joint Declaration. Any person, who failed to register as a British National (Overseas) by 1 July 1997 and would thereby be rendered stateless, automatically became a British Overseas citizen under article 6(1) of the Hong Kong (British Nationality) Order 1986. The deadline for applications passed in 1997.

Acquisition of BN(O) after 1 July 1997

It is not possible to gain the British National (Overseas) status after its final registration deadline of 31 December 1997, even by any person who has connections by means of birth or permanent residence in Hong Kong before 1 July 1997.[9]

BN(O) status cannot be passed down to descendants of current BN(O) through jus sanguinis, so any children born on or after 1 July 1997 to parents who are British National (Overseas) cannot acquire the status, and they either acquire Chinese nationality or the special status known as British Overseas Citizen, based on their parents' other nationalities. The total population of British National (Overseas), therefore, would continue to decline over the next decades and eventually be extinct.

Registration procedure

Deadline for applications
for registration as a British National (Overseas)[10]
Year of birth of BDTCRegistration deadline
1967 to 197130 October 1993
1962 to 196631 March 1994
1957 to 196131 August 1994
1947 to 195628 February 1995
Prior to 194730 June 1995
1972 to 197631 October 1995
1977 to 198130 March 1996
1982 to 198629 June 1996
1987 to 199130 September 1996
1992 to 199531 December 1996
199631 March 1997
1 January to 30 June 199730 September 1997

The registration process of the British National (Overseas) started on 1 July 1987. Applications were lodged at Hong Kong's Immigration Department, passport offices in the United Kingdom, or British Embassies, Consulates or Diplomatic Missions abroad. In the first few years, the majority of BDTC in Hong Kong opted not to register for BN(O), so only 15% of the total passport applications in Hong Kong were for the BN(O) passport.[lower-alpha 2]

In order to avoid peaks in the registration process towards 1 July 1997, the British government, by means of enacting the Hong Kong (British Nationality) (Amendment) Order 1993, divided BDTCs into several groups in 1993 by their year of birth. Each group was given a deadline for registering as BN(O)s until 30 September 1997.[11] All applicants who did not register within the time frame of their age groups were required to provide a legitimate explanation in writing, or they could be denied registration.

The status of BDTC in Hong Kong officially ceased to exist after 1 July 1997. Those who had acquired BDTC between 1 January and 30 June 1997, however, were allowed to register until 30 September of the same year, three months after the transfer of sovereignty of Hong Kong. In light of the United Kingdom Memorandum to the Joint Declaration, 31 December 1997 was the last day for any eligible person to register for the British National (Overseas).

British Nationality Selection Scheme (1990)

After a brief period of optimism after Deng Xiaoping's promise of retaining Hong Kong's British Common Law system, safeguarding the independence of judicial proceedings from government intervention and preserving the capitalist market economy, initial response to the registration for BN(O) was unenthusiastic.

On 4 June 1989, the Massacre of unarmed university students in Beijing, however, eliminated the credibility of the Chinese government among the residents of Hong Kong. Under pressure from the Legislative Council of Hong Kong, the government of United Kingdom created a selection scheme to grant full British citizenship to 50,000 families based on a meritocratic points system.

After the transfer of sovereignty

As of 31 December 1997, around 3.4 million of Hong Kong's British Dependent Territories Citizens successfully registered as British National (Overseas), and there were around 2.7 million of British National (Overseas) passports in circulation. About 2.5 million permanent residents of Hong Kong were not eligible to register for the British National (Overseas).[12] Many of them were not British Dependent Territories Citizens, due to the fact that they had immigrated (often illegally) from Mainland China. As a result, these people with Chinese nationality only acquired the permanent resident status of Hong Kong automatically after seven years of residence. Naturalizing as a BDTC, however, is a separate and voluntary process, so only few of the Chinese immigrants chose to become BDTCs. Thus, almost all of them were unable to obtain passports of any country (the issuance of Chinese passport was restricted to officials travelling on government duty until the 1980s). As a temporary resolution, the colonial government issued Hong Kong Certificate of Identity, commonly known as CI, as a travel document to these immigrants. Because all CI holders who were born in Mainland China were nationals of China, the nationality status of these people remain unchanged after the handover (although they could apply for the HKSAR passport after 1 July 1997). Some British Dependent Territories Citizens were also chosen by the British Nationality Selection Scheme, thus holding full British citizenship.

Prior to the transfer of sovereignty, the personal information of BN(O)s were collected and managed by the Immigration Department of Hong Kong. From 1998, the Hong Kong Regional Passport Processing Centre of the Foreign and Commonwealth Office, a department under the British Consulate-General of Hong Kong, took over the responsibility of administering the personal information database of BN(O).

Passports and visa requirements for BN(O)

British Nationals (Overseas) are entitled to apply for BN(O) passports. The design of such passports are the same as the British citizen passports, but without the text "European Union" on the front cover. All BN(O) passports issued after 2007 are biometric passports. Since 2015, the UK Government is not seeking further expansion of visa-free travel worldwide for BN(O) passport holders residing in Hong Kong.[13]

Rights and privileges

United Kingdom

Civic rights

British Nationals (Overseas) are Commonwealth citizens and therefore enjoy certain rights when visiting or residing in the United Kingdom.[14] Under British laws, BN(O)s are not considered "foreign nationals" in the UK, and BN(O)s do not require a visa or entry certificate when visiting the United Kingdom for less than 6 months. When residing in the United Kingdom, BN(O)s have the same rights as Commonwealth citizens, including the exemption of requirement to register with the local police, eligibility to serve in Her Majesty's Civil Service, and eligibility of voting in local, national and European elections.[15] British Nationals (Overseas) can be conferred British honours, receive peerages and become peers of the House of Lords. If they also hold the indefinite leave to remain, they are eligible to stand in election for the House of Commons of the United Kingdom and local government in the United Kingdom.

Working holiday

British Nationals (Overseas) can apply to enter the United Kingdom on a working holiday visa under the Tier 5 Youth Mobility Scheme (YMS). They do not face an annual quota or require a government or employer as their sponsor in order to take part in the Scheme. Any BN(O) applicants with funds of £1,890 or more and aged 18–30 are eligible to apply. Working holiday visa (also known as "entry clearance") holders are free to perform employment activities (with certain restrictions) in the United Kingdom for up to two years. This privilege is shared by British Overseas citizens and British Overseas Territories citizens, although all BOTCs became full British citizens on 21 May 2002.[16]

British citizenship

British Nationals (Overseas) with other citizenship or nationalities can be registered (instead of being naturalized) as British citizens under section 4 of the British Nationality Act 1981. They need to have either lived in the UK for at least 5 years and spent no more than 450 days abroad during that time, as well as no more than 90 days abroad in the last 12 months before the application (the last 12 months should also be free from any immigration restrictions, such as holding Indefinite Leave to Remain); or worked in Crown Service at any time. They get citizenship "otherwise than by descent", and their children under 18 or future children born outside UK can also be British citizens.[17]

For those without other citizenship or nationality, section 4B of the British Nationality Act 1981, as amended by the Borders, Citizenship and Immigration Act 2009, provides a way for them to register as British citizens without any type of residence in the United Kingdom. To qualify, they must have not renounced, voluntary given up, or lost (through action or inaction) any citizenship or nationality.[18]

Registering as a British citizen has no effect on one's BN(O) status, although the person would be ineligible for a BN(O) passport if he or she has acquired a British citizen passport. Instead, the British citizen passport will have an additional annotation stating the person's right of abode in Hong Kong as well as the person's additional British National (Overseas) status.[19]

Hong Kong

Because a person's BN(O) status is no longer associated with his or her residence status of Hong Kong after 1997, no special rights or privileges are accorded to persons with BN(O) status by the Hong Kong SAR government, except for the fact that holders of BN(O) passports may enter Hong Kong without a visa or an entry permit under any circumstances.[20]

Loss of permanent residence

Contrary to the passport's annotation which states a holder of a BN(O) passport has the right of abode in Hong Kong, a BN(O) will lose his or her right of abode under the Immigration Ordinance if he or she

However, persons who lose the right of abode acquire the right to land automatically, a status which accredits most of the rights and responsibilities of permanent residents. The only difference is that persons with the right to land can be subject to a deportation order, and the person will then lose his or her right to land when the deportation order is in force. A deportation order can be issued to a person who:

Under these scenarios, a BN(O) whose right to land is deprived will be deported from Hong Kong, and he or she will be de facto stateless if his permanent residency in another country is also expired or revoked.

Restrictions

People's Republic of China

Although British Nationals (Overseas) are British nationals under British nationality law, most of them are also of Chinese descent. As a result, all BN(O)s with Chinese ancestry, who were born or naturalized in Hong Kong, are dual nationals of UK and China due to a special legislation implanted in Hong Kong since the handover of sovereignty. One clause of the legislation granted Chinese nationality to those who are of Chinese descent and were born on Hong Kong soil, even after the handover; while the other clause declared all types of British nationalities acquired by the city's Chinese residents as "illegitimate", including BN(O) and British citizenship acquired through the BNSS.

Moreover, China does not recognize dual nationality for its nationals, and Chinese authorities considered these dual nationals solely as Chinese nationals. Chinese nationality also cannot be terminated for Chinese-descent residents holding BN(O) or British Citizenship acquired through the BNSS.[lower-alpha 3]

As a result, BN(O)s are not entitled to British consular protection in Mainland China, Hong Kong and Macau.[23] During a high-profile case in April 2005, Ching Cheong, a senior journalist of The Straits Times of Singapore with dual British National (Overseas) status and Chinese nationality, was detained by Chinese government for alleged espionage activities by providing state secrets to Taiwan. Until Ching's release in February 2008, the British government refused to provide consular protection, despite petitions by civil rights groups to the Foreign and Commonwealth Office (FCO). The FCO explained that they could provide assistance to Ching, but they simply could not intervene in the judicial proceedings of other countries.[24]

Republic of China (Taiwan)

Under its law, the Government of the Republic of China classifies British Nationals (Overseas) as permanent residents of Hong Kong and Macau.[25] Thus, BN(O)s subject to entry restrictions as the same basis as HKSAR passport holders.[26]

United Kingdom

British Nationals (Overseas) are subject to immigration controls and do not have the right of abode in the UK.[27] From 6 April 2015, all British Nationals (Overseas) staying in UK for longer than six months will be required to pay a ‘health surcharge’ in order to access National Health Service benefits offered to permanent UK residents.[28]

The status of BN(O) was specially created for British Dependent Territories Citizens of Hong Kong in 1985. Fearing a massive influx of immigrants from former British colonies, the Conservative government under Margaret Thatcher refused to grant the right of abode in the United Kingdom to residents of Hong Kong. The only exception is that a British National (Overseas) who was born before 1983 and has been a British citizen up to the same year, could renounce his or her British citizenship without losing the right of abode in the UK.

In late January 2016, the British government announced that holders of HKSAR passports are eligible to register for the Registered Traveller service (RTS) which enables them to clear UK immigration using EU/EEA citizen lanes or ePassport gates. The service is not yet available to BN(O) passport holders, and a Foreign and Commonwealth Office spokesperson said that “the majority of BN(O) passport holders are also holders of a Hong Kong Special Administrative Region passport which would enable them to apply for the Registered Traveller Service if they are in one of the eligible categories.”[29]

European Union

Prior to the enactment of European Union directive of 1932/2006, British Nationals (Overseas) were not included in the Annex II of Council Regulation (EC) No 539/2001,[30] and hence needed a Schengen visa to visit the Schengen Area. Only British Nationals (Overseas) using Hong Kong SAR passports to enter Schengen Area could be exempted from obtaining a visa as HKSAR passport was included in the Annex II.

Under the European Union directive of 1932/2006,[31] British Nationals (Overseas) were added to Annex II as "British citizens who are not nationals of the United Kingdom of Great Britain and Northern Ireland for the purposes of community law" for immigration purposes. An EU legislation named Visa requirements for nationals of Non-EU Member Countries provided BN(O) visa-free access to the European Union while specifying them as non-EU citizens.[32]

Criticism

The creation of a new class of British nationality (with fewer privileges) was met with criticism from many Hong Kong residents who felt that British citizenship would have been more appropriate in light of the "moral debt" owed to them by the UK.[lower-alpha 4][lower-alpha 5] Some British politicians[lower-alpha 6] and magazines[lower-alpha 7] also criticised the creation of BN(O) status.

The British Nationality Law 1981 has been criticised by experts,[lower-alpha 8] as well as by the Committee on the Elimination of Racial Discrimination of the United Nations,[lower-alpha 9] on the grounds that the different classes of British nationality it created are, in fact, closely related to the ethnic origins of their holders.

See also

Travel documents

Nationality laws

Other

Notes

  1. ↑ "Connection to Hong Kong" refers to Hongkongers who gained British Dependent Territories Citizen status by birth, by naturalization, by adoption or by descent.
  2. ↑ From 1 July 1987 to 31 December 1989, the Hong Kong government had issued a total of 731,600 passports, in which 85% or 630,700 of them were British Dependent Territories Citizen passports. In contrast, only 100,916 of British National (Overseas) passports were issued.
  3. ↑ In light of the Nationality Law of the People's Republic of China and the decision made in the 19th session of the 8th Standing Committee of the National People's Congress
  4. ↑ For example, the legislative councilor Dr Henrietta Ip criticised the idea of British National (Overseas) and again urged the UK Parliament, to grant full British citizenship to Hong Kong's British nationals in the council meeting held on 5 July 1989, saying that "we were born and live under British rule on British land.... It is therefore... our right to ask that you should give us back a place of abode so that we can continue to live under British rule on British land if we so wish.... I represent most of all those who live here to firmly request and demand you to grant us the right to full British citizenship so that we can, if we so wish, live in the United Kingdom, our Motherland.... In fact, your resistance to granting us full citizenship and the right of abode in the United Kingdom reflects your doubt about the Joint Declaration. Yet the more you lack confidence in it, the stronger is the reason why you should grant us full citizenship to protect us from communist rule... I say to you that the right of abode in the United Kingdom is the best and the only definitive guarantee.... With your failure to give us such a guarantee, reluctant as I may, I must advise the people of Hong Kong, and urgently now, each to seek for themselves a home of last resort even if they have to leave to do so. I do so because, as a legislator, my duty is with the people first and the stability and prosperity of Hong Kong second, although the two are so interdependent on each other...."
  5. ↑ The legislation is sometimes compared with Macau, a former colony of Portugal, where many residents of Chinese descent were granted right of abode in Portugal when Macau was still under colonial rule. They were not deprived of their right of abode after the transfer of sovereignty of Macau in 1999, their Portuguese passports and citizenship are valid and inheritable, and it turned out that many of them still choose to stay in Macau.
  6. ↑ Then Shadow Home Secretary, Jack Straw, said in a letter to the then Home Secretary Michael Howard dated 30 January 1997 that a claim that British National (Overseas) status amounts to British nationality "is pure sophistry".[33]
  7. ↑ The Economist also wrote critically in an article published on 3 July 1997 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 commented 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 United Kingdom was waiting until Hong Kong had been disposed of - "would be seen as highly cynical", as Baroness Symons, a Foreign Office minister, has conceded.[34]
  8. ↑ For example, Ann Dummett, an expert in this area, criticised that "There is no indication at all in our nationality law of ethnic origin being a criterion. But the purpose of the law since 1981, and the manner in which it is implemented, make sure that ethnic origin is in fact and in practice a deciding factor."[35] Ms Dummett also said that the 1981 Nationality Act in effect gave full British citizenship to a group of whom at least 96% are white people, and the other, less favourable forms of British nationality to groups who are at least 98% non-white[36]
  9. ↑ In March 1996, there was a submission to the Committee on the Elimination of Racial Discrimination of United Nations. The committee criticised the arrangements of the BN(O) nationality under "Principal subjects of concern": The Government's statement that South Asian residents of Hong Kong are granted some form of British nationality, whether that of a British National Overseas (BNO) or a British Overseas Citizen (BOC), so that no resident of Hong Kong would be left stateless following the transfer of sovereignty is noted with interest. It is, however, a matter of concern that such status does not grant the bearer the right of abode in the United Kingdom and contrasts with the full citizenship status conferred upon a predominantly white population living in another dependent territory. It is noted that most of the persons holding BNO or BOC status are Asians and that judgements on applications for citizenship appear to vary according to the country of origin, which leads to the assumption that this practice reveals elements of racial discrimination.[37]

References

Citations

  1. ↑ , Written Answers, House of Lords (4 November 2008)
  2. ↑ https://www.gov.uk/types-of-british-nationality/british-national-overseas
  3. ↑ "United Kingdom Memorandum", Sino-British Joint Declaration, 1984.
  4. ↑ Lords Hansard, British House of Lords, 22 March 2007
  5. ↑ UK Border Agency: Chapter 50: British Nationals (Overseas) - Hong Kong Act 1985 & Hong Kong (British Nationality) Order 1986 - general information
  6. ↑ Borders, Citizenship and Immigration Act 2009
  7. ↑ Eligibility to the British National (Overseas) status
  8. ↑ The Hong Kong (British Nationality) (Amendment) Order 1993
  9. ↑ "Types of British nationality". GOV.UK. Retrieved 2016-07-25.
  10. ↑ Annex B: Deadlines for applications for registration as a British National (Overseas)
  11. ↑ Second Schedule to the Hong Kong (British Nationality) (Amendment) Order 1993
  12. ↑ Joseph Y. S. Cheng (1997). The Other Hong Kong Report 1997. Chinese University Press. ISBN 9622017789. Retrieved December 1, 2014.
  13. ↑ http://www.parliament.uk/documents/commons-committees/foreign-affairs/Government_Response_to_FAC_Report_-_Hong_Kong.pdf
  14. ↑ http://www.publications.parliament.uk/pa/cm201415/cmselect/cmfaff/649/64907.htm#a9
  15. ↑ Representation of the People Act 1983, Section 4
  16. ↑ Tier 5 (Youth Mobility Scheme) visa
  17. ↑ Register as a British citizen
  18. ↑ Section 4B British Nationality Act 1981
  19. ↑ British National (Overseas) and British Dependent Territories Citizens
  20. ↑ "Visit Visa / Entry Permit Requirements for the Hong Kong Special Administrative Region". Hong Kong Immigration Department.
  21. ↑ "Loss of Hong Kong Permanent Resident Status". Hong Kong Immigration Department.
  22. ↑ "Section 20 of the Immigration Ordinance".
  23. ↑ Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region Archived 23 February 2007 at the Wayback Machine., The Nineteenth Session of the Standing Committee of the Eighth National People's Congress, 15 May 1996.
  24. ↑ "Ching Cheong Under House-Arrest in China and Allowed to Contact Family", The Sun, 6 June 2005. (in Chinese)
  25. ↑ Laws and Regulations Regarding Hong Kong & Macao Affairs
  26. ↑ "Entry requirements
  27. ↑ "Types of British nationality: 6. British national (overseas)". Gov.uk. Retrieved 2015-02-10.
  28. ↑ https://www.gov.uk/government/news/uk-announces-health-surcharge
  29. ↑ "HKSAR passport holders can join fast track UK border scheme – but BN(O) holders still ineligible". Hong Kong Free Press. Retrieved 2016-02-10.
  30. ↑
  31. ↑
  32. ↑ "EUR-Lex - l14007b - EN - EUR-Lex". eur-lex.europa.eu. Retrieved 2016-07-25.
  33. ↑ "Labour call for British citizenship for Hong Kong ethnic Asians", PR Newswire Europe Ltd., 1997.
  34. ↑ "Britain’s colonial obligations", The Economist, 3 July 1997.
  35. ↑ , Letter to Franco FRATTINI, Standing committee of experts on international immigration, refugee and criminal law. Date: 25 September 2006.
  36. ↑ Lack of basic human rights in the Borders, Citizenship and Immigration Bill, BritishHongKong
  37. ↑ Concluding observations of the Committee on the Elimination of Racial Discrimination : United Kingdom of Great Britain and Northern Ireland. 28/03/96.

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