CONFIDENTIAL
registered as a BDTC if that descendant is born
stateless.
There is a similar provision in Section 3 (2)
of the BNA in respect of British citizens.
An argument against this course would be that we are dealing not with BDTC status but with BOC status, which is not transmissible, So that the provisions of Section 17 (2) are not relevant. I do not however think that this will be very persuasive either in Hong Kong or in Parliament. We have already agreed in effect that one category of BOC will be able to transmit BOC status his children: this is the category of BDTCs who fail to take out BN (0) status, and who, because they would otherwise become stateess in 1997, become BOCs. This being so, it is hard to argue
doctrinal grounds that
we cannot do the
same for the next generation.
to
It could also be argued that we have already done enough, and that while it is reasonable to make provision for those who are born immediately after 1997, we should not be required to make provision for those born some 20 years later. This is a stronger argument, but unfortunately there is clearly a strong body of opinion which does not agree with the thesis, and I feel that there is a strong risk that the argument will not be accepted. I come to the conclusion that the easiest and safest position to defend would be that in this special case we intend to provide these people with the same ability (and no more) to transmit their nationality as they would have had if we had not been obliged to remove their BDTC status.
I do not think that
think that we would thereby compromise the doctrine that BOC status is not transmissible. We would argue that the entitlement to register these stateless minors as BOCs would derive not from their parents' BOC status, but from the fact that the parents would have been BDTCs but for the Order and their grandparents were BDTCS until 1997.
I would be grateful if you would consider this proposal urgently. We believe that it should be relatively simple to draft a provision for inclusion in the nationality Order in Council based
on the language of 17 (2) and
(3)(a) and (b) of the BNA.
If you can agree to the approach outlined above I suggest that we mount a three pronged defence on this issue in the House of Lords on the following lines, which we hope will be sufficient to head off pressure for a damaging amendment:
CONFIDENTIAL