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I July
1997
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CODE 18-77
AWO Ltd. 7/84
#KK040/4.
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Mr Galsworthy, HKD
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HONG KONG (BRITISH NATIONALITY) ORDER 1985 HONG KONG -TELEGRAM 681
1.
The above telegram, which was copied to me, sets out Hong Kong's thoughts on the proposals for the Order-in- Council, and particularly, I think, on Mr Hill's draft of 22 February. My comments are as follows (following the numbers in that telegram).
No
there
1A-C. Hong Kong appear to be proposing that certain "mixed" BDTCs should be excepted from loss of that status on 1 July 1997. Legal Advisers have already given their view (my minute of 15 March) that "mixed" BDTCs come within the term BDTC "by virtue of a connection with Hong Kong" in the UK Memorandum. If, as appears from point A to be the case, Hong Kong are arguing that for the purpose of that Memorandum the words "a connection with Hong Kong" means "a connection with Hong Kong which is more important than any connections with another territory", seems to be no justification for such an interpretation. If however you do wish to provide that any of these BDTCs who are required on our interpretation of the Memorandum to lose that status should nevertheless not do so, that is a matter of policy for the Department which would no doubt necessitate the making of decisions as to which BDTCs should in principle be excepted from loss, and to what extent this would or would not be acceptable to the Chinese. Instructions on these points are needed to enable drafting of the Order to proceed.
I am however slightly uncertain as to what Hong Kong's approach is (their paragraph 1B). If they are construing the terms of the Memorandum "by virtue of a connection with Hong Kong" as meaning "by virtue solely of a connection with Hong Kong", then do they mean that all mixed BDTCs should be excepted from On the other hand, the test proposed in the final sentence of paragraph 1B seems to be very like the distinction we have already attempted to point out, between "separate" and "mixed" BDTCS.
loss?
As regards the particular categories whom Hong Kong proposed should be excepted from loss (paragraph 1(c) (i)-(iii)), those in sub-paragraph (i) would seem to be separate BDTCS (having a wholly separate connection with another Dependent Territory under Section 15(1) of the BNA 1981). This point also applies to the amendment made in telegram 714 a person born in another Dependent Territory before 1 January 1983 would have to be a separate BDTC by virtue of his having been a CUKC by birth there under section 4 of the BNA 1948, and his having become a BDTC under section 23 BNA 1981.
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