E.R.
Hinn
340+
RECEIVED IN REGISTAM
TIME.
19 MAY CONFIDENTIAL
SK OFFICER
Mr Fries
PA
cc Mr Tompkins
Teltotte
(735)
Mr Rawsthorne
Mr Boyle Mr Emery
Mr Seymour
M Hill (HKD, FCO)
HONG KONG: THE GRANTING OF SETTLEMENT TO FORMER SERVICEMEN AND THEIR DEPENDA AND TO NON-CHINESE BDTCs
(625)
The attached telegram No 1277 of 30 April from Hong Kong seeks confirmation
of the basis on which settlement would be granted to former servicemen who
do not qualify for British citizenship and to non-Chinese BDTCs if they were
to come under pressure to leave Hong Kong after 1997. The simple answer on
both points is that settlement would be granted outside the Rules under the
provisions of section. 4(1) of the Immigration Act 1971.
However, the full answer to this question is rather more complex and the leg
and constitutional issues are very much bound up with the practical arrangem
that we might introduce. I have discussed these with Mr Seymour and Mr Boyl
The ex-servicemen and their dependants represent a clearly defined category
and it seems unecessarily bureaucratic to ask Hong Kong to submit such
applications to us. Since the question of granting settlement to those who
might come under pressure to leave after 1977 is purely hypothetical at
present, we have no means of knowing what circumstances might justify such
action or what criteria would have to be applied. It seems clear, therefore
that this function could not be delegated to Hong Kong unless and until firm
criteria were established in the light of the circumstances at the time.
4
In the case of the ex-servicemen and their dependants, therefore, we would
envisage Hong Kong issuing entry clearance applications for settlement in th
normal way so that the immigration officer would place an indefinite leave t
enter stamp in the passport on arrival. The difficulty about this is that
section 4(1) of the 1971 Act clearly distinguishes between the immigration
officer's power to give leave to enter and the Secretary of State's power to
give leave to remain in the United Kingdom. Can the immigration officer rea
be said to be exercising a discretion on behalf of the Secretary of State in
these circumstances? From my discussion with Mr Seymour it seems that the
position on this is byno means clear but we might reasonably point to para-
graph 1(3) of Schedule 2 to the 1971 Act which says that "In the exercise of
their functions under this Act immigration officers shall act in accordance
with such instructions (not inconsistent withthe Immigration Rules) as may b
given them by the Secretary of State." The words in parenthesis represent
CONFIDENTIAL