RESTRICTED
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COVERING CONFIDENTIAL
UK nationals was carefully thought out in 1982 and only agreed after lengthy consultation. I doubt whether an amendment now would be acceptable. The better method of resolving the inconsistency would therefore seem to be to ask Gibraltar to amend their Immigration Ordinance to bring it in line with our definition. The Home Office also favour this approach (Mr Weekes' letter of 10 December). I therefore agree with the approach suggested in paragraph 5 of your minute of 17 February.
6.
The second problem which arises is the possibility that BDTCS who are settled in another Dependent Territory may come to Gibraltar shortly before the birth of a child for no other reason than that of ensuring that the child is born in Gibraltar, in order to confer the benefits of UK nationality for EC purposes on the child. This problem is separate from the one
I have discussed above in that the parents of such a child would not have belonger status either under the current Immigration Ordinance, or after an amendment; such persons would not be UK nationals for EC purposes. The possibility of this happening exists, I suspect, mainly in relation to Hong Kong BDTCs who in 1997 will lose BDTC status (although it exists also in relation to other BDTCs who might wish to acquire the right to register as BC for their children). Hong Kong Department may have some views as to whether this problem is going to be a substantial
one.
7.
If it is felt that the problem is a real one, and that steps should be taken to close this loophole, then the possibilities would again seem to include either the amendment of the extended definition in the UK declaration, or the amendment of the Hong Kong immigration legislation. Again, for the reasons that have already been mentioned, I doubt whether an amendment to the definition of UK nationals would be feasible or acceptable. Again the solution, if there is one, would seem to lie in the amendment of the Gibraltar immigration legislation.
8. One such possible amendment would be the application of more stringent conditions to the entry and residence of pregnant BDTC women (as you have suggested in your minute to Jeremy Emery of 29 November 1985). I understand that measures of this nature already exist in relation to alien pregnant women. One problem would be that such a measure might be difficult to enforce, though if Gibraltar have been operating a measure of this nature in relation to alien women they may be in a position to say whether or not it has proved to be effective. Another problem is that it might be thought undesirable on policy grounds to exclude certain British nationals from a British territory, though this would of course have to be balanced against the possibility that the present system may be abused. If therefore there is a feel- ing that a real loophole exists, it may be worth discussing with Gibraltar whether this solution is a feasible one, and if not, whether they have any other ideas about how we should proceed.
CODE 18-77
AWO Ltd 7/84
John. Grainger LEGAL ADVISERS