Opinion
ANNEX B
I advise that, whatever may be the political or practical arguments that may be advanced to the contrary, nevertheless it will, for the reasons given below, be lawful after the British Nationality Act comes into force, for a
British" to be recorded in description such as "Nationality
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the passport of a B.D.T.C., even if he does not have the right of abode in the United Kingdom. In view of the present and anticipated attitude of certain countries including some members of the European Community, the question is of obvious importance to travellers from Hong Kong.
I.
SUMMARY OF THE LAW
The following propositions, in my opinion, are well- established by the cases and by the works of internationally- respected academic writers:
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2.
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4.
5.
The
Citizenship is to be contrasted with nationality. term citizen, properly used, describes a status enjoying rights (sometimes differing for different categories) which are given by the domestic law of a state to those who, owing allegiance to that state, are, for the purposes of international law described as its nationals ; the sum total of all categories of citizen form the nationals of a state. Colonial citizens owing allegiance to a sovereign state are included amongst its nationals.
It is nationality (not citizenship) which gives rise on the one hand to the duty of allegiance to the state. and on the other to the right to protection by the state when abroad. Under English law, this right, though recognised by the highest courts, is one of imperfect obligation in that it cannot be enforced by legal action against the Crown.
A passport is issued by virtue of the Royal Prerogative by the Government of the United Kingdom under the hand of the Foreign Secretary on behalf of the Queen. "The passport is now the method by which the Crown accords its protection to persons when abroad. It is the Sovereign express command to her representatives that protection is to be given, and in its normal functioning puts into operation the Crown's protective system.".
Even an alien, once he holds a British passport, enjoys the protection of the Crown, so that if he is adherent to the Queen's enemies he is guilty of treason, unless and until he has renounced that protection.
It is lawful and indeed appropriate in a passport to describe that relationship which gives rise to the right to protection (i.e. nationality) rather than merely