+
CONFIDENTIAL
J
"
As you stated in your minute of 15 March 1984 on the Dalamal case, it was clearly the intention that a BDTC who derived his status even only partly from Gibraltar was to be regarded as falling within the definition of a UK national for EC purposeş. On this basis the answer to Hong Kong's telegram 1646 would seem to be a clear 'yes'. By reason of his 'mixed' connection with Hong Kong, such a child will cease to be a BDTC on 1 July 1997 but in the meantime he can be registered as a British citizen. The only way to prevent Gibraltar being used as a loophole in this way would seem to be by a tightening up of their immigration controls on pregnant women. I understand that alien pregnant women are required to leave the territory no later than the seventh month of pregnancy but this does not apply to BDTCs, or presumably to any other categories of British nationals.
6'.
What worries me somewhat is that I am not satisfied that, in the Dalamal case, NTD's interpretation of the Gibraltar Immigration Control (Amendment) Ordinance 1982 as to the child's belonger status in Gibraltar was correct. The introduction to the new sub-section 2(2) to be added to the original Ordinance says that a BDTC shall have a connection with Gibraltar if he fulfils 'all of the following criteria that are applicable to him' (my underlining). The new sub-section 2(3) goes on to indicate that more than one 'material qualification' may have to be established to show an, entitlement to be a BDTC. The sixth paragraph of the explanatory memorandum to the amending Ordinance clearly states that 'where it is also a qualification that a relative must be a British Dependent Territories Citizen the relative must be such a citizen by reason of a connection with Gibraltar'. It would seem to me that a 'mixed' BDTC born after 1.1.83, whose status is derived from a combination of connections with 2 dependent territories, is not regarded as having a qualifying connection with Gibraltar for the purposes of their Immigration Control Ordinance.
7. While I accept that belonger status cannot be used as a determining factor for nationality purposes, if my interpretation is correct the anomalous situation to which you referred in the final sentence of para 1 of your minute of 15.3.84 on Dalamal would seem to arise in most cases of 'mixed' BDTCs who have a partial connection with Gibraltar.
8.
I shall be grateful for your views.
21 August 1985
YJ Veale (Miss)
Nationality & Treaty Dept. (CL501 213-5159)
cc. Mr. J. Emery, Ho (with enclos. other than A&B)
Mrs Priest, HKD (without enclos.)
CONFIDENTIAL