21 SEP '90 16:18 INDBJ LUNAR HOUSE 01 780 2882
P.3. 3
5.
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But we doubt whether a scheme leading in the short term at least to citizenship is capable of implementation. The Governor of Gibraltar is obliged to act within the terms of the delegation to him under section 43 of the 1981 Act; and that delegation must in turn be within the terms of the Act. Under the 1981 Act, as my namesake Al Harrington has already pointed out, there is no power to waive the "start date" of the 5 year residential qualifying period for naturalisation. Furthermore, while excess absences during the qualifying period can be waived "in the special circumstances of any particular case" (Schedule 1, paragraph 6, 1981 Act) there can be no general prior commitment to exercise discretion over absences in a particular way in respect of a particular class of cases. In other words, the Governor does not have the power to vary the conditions in the way contemplated by paragraph 6 of your minute to
Robin McLaren.
6.
What I have said above does not rule out the possibility that the potential Hong Kong immigrants could
take up residence in Gibraltar, comply with the 5 year qualifying period, apply for GBDTC status, and then apply under section 5 of the 1981 Act for British citizenship. But it looks as if that could only arise if, for a financial consideration, the Gibraltar authorities were to establish a special form of non-resident settled status which enabled the beneficiaries to set off on that road. The whole plan, and any resultant exercise of any discretion delegated to the Governor in respect of those who did not comply with the letter of the residence requirements, could give rise to criticism.
1.
The points made above might not arise if it were the clear understanding of all concerned in Gibraltar and Hong Kong that the offer was confined to an opportunity at some future date to take up residence in Gibraltar. But I do have a strong suspicion that nobody in Hong Kong would regard that as worth £20M, and that people in Hong Kong are interested in a "residence-free" route to the entitlement to British citizenship under s.5.
8.
Subject to anything you want to say before we do so, we would propose to obtain the Home Secretary's views on this matter as soon as possible. But that cannot be before Mr Garel-Jones's visit next
week.
9.
I will leave you to circulate this to appropriate addressees in the Foreign Office. I am copying it to Bob Morris, David Seymour, Vivienne Dews and Liz Grimsey here.
Yours,
В.
R A HARRINGTON
Head of Nationality Division
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