CONFIDENTIAL
DRAFT HONG KONG (BRITISH NATIONALITY) ORDER 1985: COMMENTARY
Introduction
C
1.
The purpose of the Order is to implement the nationality provisions
of paragraph 2 of the Schedule to the Hong Kong Act 1985.
Connections with Hong Kong
2.
Articles 2, and 3 of the Order deal with the provisions of paragraph
2(1)(a) of the Schedule to the Act.
3.
Article 2(1) sets out in a generalised formula those persons who
are deemed to have a connection with Hong Kong for the purposes of the
Order.
It is designed to encompass all those categories of people listed
in Annex 1: that Annex in turn follows closely the current (ie unamended)
definitions of "Hong Kong Belonger" in the Hong Kong Immigration Ordinance.
For convenience the serial numbers in the list annexed are shown against
their appropriate definitions in the generalised formula.
4.
Article 2(1)(a) assumes birth, adoption, naturalisation or
registration in Hong Kong to be a sufficient connection in itself. Virtually
all such persons are included in the Hong Kong Immigration Ordinance as Hong
Kong Belongers, and may therefore by definition be regarded as BDTCs by
virtue of a connection with Hong Kong. Article 2(1)(a)(i) read with
article 2(3) is framed so as to exclude birth in Hong Kong on or after
1 January 1983 where neither parent is settled (as proposed in Mr Hyde's
letter to Mr Galsworthy of 3 May). See also the commentary on Article 2(3).
5.
Article 2(1)(b) is concerned with people registered, but not
naturalised, outside Hong Kong. Naturalisation outside Hong Kong has been
excluded because, generally speaking, naturalisation in any dependent
territory is based on qualifying residence or service in that territory.
Under the BNA 1948 this was fairly clear and was set out in paragraph 4 of
the second Schedule. The position is not so clear cut under the BNA 1981,
but instructions to Governors promulgated on this subject by NTD generally
require naturalistation as a BDTC to take place in the dependent territory
in which the qualifying residence or service was undertaken. It is
conceivable, though rather fanciful, that a person may have been