47
[HKC340/7
1 1990
RY
TRY
FROM: CA Whomersley
Assistant Legal Adviser K171 270 3075
DATE : 13 February 1990
CC
: Mr Hague, HKD
Mr Fifoot, o/r Ms Barrett
Mr Paul HKDV
Token
14/5
NATIONALITY AND CONSULAR PROTECTION
1. I think that we need to clarify exactly what our view should be in relation to consular protection for those who receive British citizenship under the forthcoming nationality package. To begin with the position prior to 1997, we of course take the view that those who enjoy a form of British citizenship, ie those who are BDTCS, by virtue of a connection with Hong Kong are British nationals and thus entitled to consular protection, except, in the case of dual nationals, in the country of their second nationality. My understanding is that the Chinese regard those born in Hong Kong of Chinese ethnic origin as being Chinese citizens, but I assume that our view is that we do not recognise the right of the Chinese Government to confer its nationality upon persons born in a British sovereign territory. If this is right, then ethnic Chinese born in Hong Kong who are British citizens or BDTC's are in our view entitled to consular protection prior to 1997, even in China, although I imagine that in practice there is no possibility of the Chinese acceding to this; nevertheless, I think that we must ensure that we do not say anything which will prejudice our position on this.
2. As regards the position after 1997, Hong Kong will then return to Chinese sovereignty, and in principle it is then for the Chinese to apply their nationality law to Hong Kong as they see fit. In other words, if after 1997 the Chinese wish to regard any person born in Hong Kong as a Chinese citizen, unless he has renounced his citizenship in accordance with their law, I cannot immediately see that there is any complaint which we could make about this. Thus, a Hong Kong Chinese who had received British
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