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R J F Hoare Esq
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HICKC04014
6 FEB 155
Dear Michoul
Rit
Please reply to The Under Secretary of State Your reference
Our reference
NTY/85/1337/0/2
Date
4 February 1985
HONG KONG: DRAFT ORDER IN COUNCIL
I attach two copies of a further draft Order in Council, on which we should be grateful for your and Hong Kong's comments.
You will see that the provisions for dealing with the British Nationality Act 1981 are no longer in a Schedule. Taking into account comments made during the Second Reading debate we think that to put them on a Schedule could give rise to complaints that not only are we relegating the B A material to an Order in Council, but that we were further relegating it to the small print of the Order.
We are not yet convinced that it would not be appropriate to use the Hong Kong Immigration ordinance as the basis for determining a connection with Hong Kong. However, in case this proves impossible, we have redrafted Schedule 1 on the lines proposed by your Legal Advisers. I must emphasise that this is only a first shot, simply to give the flavour of what it might look like if we have to proceed in this way.
This raises another point. Although I said in my letter of 31 January that we were of the view that "mixed" BDTCs should not be excluded from loss, we can imagine some circumstances where this might be regarded as inequitable. One example is that of a child born in Hong Kong to Gibraltese parents while they were there, say, on holiday. Such a person, even if he left Hong Kong within weeks of the birth, and never went back there again, would lose BDTC by definition and in accordance with d the policy on 'mixed" BDTCs. But this effect was clearly not intended when the making of the Memorandum was agreed, and it seems rather harsh.
If you agree, then it might be necessary to qualify the definition either specifically or by some sort of general saver so as to avoid this outcome. But we wonder whether the wording of paragraph 2(1)(a) of the Schedule to the Bill is sufficiently wide to allow us to do this if we thought fit. On the one hand it might be agreed that it is open to us to define "a connection with Hong Kong" in any way we like. On the other hand it might be argued that birth in Hong Kong is itself such an obvious connection that it is not
within our powers either to exclude or qualify it.
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