CONFIDENTIAL
The
period of three years preceding his application. The paragraph does not (as yet) apply at all to the children of BN (0)s. proposed Article 5 (2) would however confer BOC status on all the children of BN (0)s, or of BOCs under Article 5(1), born stateless outside the UK and the dependent territories (and this will include those born in Hong Kong after 30 June 1997), with no qualifications as to residence (subject of course to possible loss of nationality under Article 5(3)).
15.
This effect of the proposed provisions as to statelessness gives perhaps the greatest cause for concern. In particular, the problem arises because of the relative positions of, on the one hand, BN (0) s and BOCS under Article 5(1), and, on the other hand, other BOCS. The main difference is that the BOC status which can be acquired by the children of persons in the former category can be obtained without any reference to residence requirements
(although it can be lost, as set out in Article 5(3)), whilst other BOCS need to satisfy the residence requirement. Since BOCs do not have the right of abode in the UK, or (usually) in a dependent territory, the residence requirement will in their case rarely be fulfilled. The first category of BOCs (and BN (0) s) are therefore in a greatly privileged position and this may cause some pressure to grant other BOCS the same privileges, a point of some political importance.
16.
17.
Kva
These provisions give rise to the following questions
(i)
(ii)
(iii)
Why should some BOCs be treated more favourably than other BOCS? If they are to be part of the same category of citizenship, why should certain BOCS (and BN (0) s) be in a more favourable position as regards the transmissibility of that status?
To what extent should the acquisition of BOC status be limited? The larger the number of BOCs created, then the greater the commitment by HMG (a commitment which might, under international law, include a duty to admit them to the UK, in the last resort, upon their expulsion from another territory).
Does the operating of BOC status to such persons at birth as of right conflict with overall UK policy which (as I understand it) is that such persons should first be encouraged to apply for Chinese nationality, if (as will usually be the case) they are born in Hong Kong?
I
Finally, I would like to comment on a point which has believe, been raised previously, that is, the possibility of granting British rationality to the children of persons who have never had British nationality, (whether BDTC or otherwise). In my view, such a conferral would not be required by HMG's international obligations. Furthermore, there is an argument that it might even be invalid as a matter of international law, on the grounds that such persons do not have any real and substantial connection with the UK or with a Dependent Territory. This provision does not, however, seem still to be contemplated.
18. Perhaps you would consider these questions, which could also be put to the Home Office for their comment.
22 January 1985
John Griger
John Grainger Legal Advisers
Good quartani.
But this is
a spindl
obligate to
BNO)S.
No