L
GRS 1900
CONFIDENTIAL
CONFIDENTIAL
FM HONG KONG 04094OZ APR 85
TO PRIORITY F C O
TELEGRAM NUMBER 681 OF 4 APRIL
INFO PRIORITY PEKING.
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Legal
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YOUR TELSNOS 256 TO 259 AND OUR TELNO 337 :
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HONG KONG AGREEMENT : NATIONALITY : ORDER IN COUNCIL
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WE HAVE GIVEN SOME MORE THOUGHT TO THE QUESTIONS OF 'MIXED' BDTCS AND DEFINING BDTCS BY VIRTUE OF A CONNECTION WITH HONG KONG IN THE LIGHT OF HILL'S DRAFT ORDER IN COUNCIL AND THE MINUTES OF HILL, GRAINGER AND MISS VEALE. OUR VIEWS ARE AS FOLLOWS'
(A) POLICY ON 'MIXED' BDTCS. AGREE WITH EMERY (YOUR THIRD TUR) THAT IT WOULD BE INEQUITABLE TO DEPRIVE SOME 'MIXED'BDTCS OF THEIR BDTC-SHIP, SUCH AS A CHILD BORN IN HONG KONG TO GIBRALTESE PARENTS WHILE THEY WERE HERE, SAY ON HOLIDAY. IT WOULD SEEM UNFAIR FOR SUCH A CHILD TO LOSE HIS BDTC-SHIP IN 1997 WHEREAS A CHILD BORN
IN MACAU TO GIBRALTESE PARENTS WOULD NOT. WHILE WE FULLY APPRECIATE THE FORCE OF GRAINGER'S ARGUMENTS IN HIS MINUTE DATED 21 JANUARY 1985 THAT THE EXPRESSION BDTC BY VIRTUE OF A CONNECTION WITH HONG KONG COULD BE INTERPRETED AS REFERRING TO PERSONAL CONNECTIONS WITH THE TERRITORY, E.G. BIRTH, ADOPTION, REGISTRATION AND NATURALISATION, IT DOES NOT SEEM TO US THAT, IN THE CONTEXT OF THE BNA 1981, USCH PERSONAL CONNECTIONS ARE MORE IMPORTANT THAN OTHERS, SUCH AS THE STATUS OF ONE'S PARENTS OR GRANDPARENTS. UNDER THE BNA, BIRTH IN A DEPENDENT TERRITORY DOES NOT IN ITSELF CONFER BDTC-SHIP ON THE CHILD. THE STATUS OF THE PARENT IS OF GREATER IMPORTANCE. IF EITHER PARENT IS A BDTC OTHERWISE THAN BY DESCENT THEN THE CHILD WILL BE A BDTC REGARDLES OF WHERE HE IS BORN. IF NEITHER PARENT IS A BDTC OR SETTLED IN A DEPENDENT TERRITORY THEN THE CHILD WILL NOT BE A BDTC EVEN IF HE IS BORN IN A DEPENDENT TERRITORY. THE SAME APPLIES TO BRITISH CITIZENSHIP. FOR THIS REASON WE PREFER TO DEAL WITH ECEPTION TO LOSS ALONG THE LINES OF THE 'EXCEPTION TO LOSS' CLAUSE SUGGESTED BY EMERY IN HIS LIST OF BDTCS BY VIRTUE OF A CONNECTION WITH HONG KONG ATTACHED TO HIS MINUTE OF 21 NOVEMBER 1984 ALTHOUGH THE PROVISION NEEDS NOT BE CALLED AN EXCEPTION TO LOSS' CLAUSE.
(B) DEFINING BDTCS BY VIRTUE OF A CONNECTION WITH HONG KONG.
AS SUGGESTED BY HILL AND GRAINGER (PARAS. 2 AND 3 OF HILL'S MINUTE OF (PRESUMABLY) 31 DECEMBER 1994 AND PARA. 3, CATEGORY 1 OF GRAINGER'S UNDATED MINUTE), IT IS POSSIBLE TO INTERPRET BDTCS BY VIRTUE OF A CONNECTION WITH HONG KONG AS BDTCS WHO HAD
(NEXT WORD UNDERLINED) ANY CONNECTION WITH HONG KONG. IN OUR VIEW, HOWEVER, SUCH AN INTERPETATION WOULD BE TOO STRINGENT AND WOULD GO BEYOND THE INTENTION OF THOSE WHO NEGOTIATED THE
TEXT OF THE UK MEMORANDUM ASSOCIATED WITH THE AGREEMENT. THE BASIC
PREMISE UNDERLYING THE UK MEMORANDUM WAS SIMPLY THAT HONG KONG
CONFIDENTIAL
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