CONFIDENTIAL
021/ MDLIAN 4967
WITH HONG KONG, BRITISH DEPENDENT TERRITORIES CITIZENS (BDTCS) UNDER THE LAW IN FORCE IN THE UNITED KINGDOM WILL CEASE TO BE BDTCS WITH EFFECT FROM 1 JULY 1997, BUT WILL BE ELIGIBLE TO RETAIN AN APPROPRIATE STATUS WHICH, WITHOUT CONFERRING THE RIGHT OF ABODE IN THE UNITED KINGDOM, WILL ENTITLE THEM TO CONTINUE TO USE PASSPORTS ISSUED BY THE GOVERNMENT OF THE UNITED KINGDOM.
5. OUR LEGAL ADVICE IS THAT UNLESS, ON A DATE BEFORE 30 JUNE 1997, THE BENEFICIARIES OF THE BRITISH NATIONALITY SCHEME UNDER THE 1990 ACT WERE DEPRIVED OF THEIR BDTC OR BN (0) STATUS, THE BRITISH SIDE WOULD HAVE NO GOOD DEFENCE TO THE CHARGE THAT IT WAS ACTING CONTRARY TO THE ASSURANCE GIVEN IN JD 226 (I.E. THAT THE BDTCS STATUS WOULD BE REPLACED BY ANOTHER ONE WITHOUT RIGHT OF ABODE IN THE UK). SUCH A BENEFICIARY WOULD NOT HAVE ACQUIRED BRITISH NATIONALITY FOLLOWING SETTLEMENT IN BRITAIN AND WOULD THEREFORE STILL BE REGARDED BY THE CHINESE AS A CHINESE NATIONAL.
6.
AN ALTERNATIVE VIEW OF JD 226 IS THAT IT ALLOWS BDTCS, INCLUDING BNS BENEFICIARIES, TO RETAIN THEIR BN (0) STATUS WHICH DOES NOT CONFER ON THEM THE RIGHT OF ABODE IN THE UK: THE ACQUISITION OF BRITISH CITIZENSHIP IS A SEPARATE MATTER. IT WOULD NOT BE REASONABLE TO TREAT BNS BENEFICIARIES DIFFERENTLY FROM THOSE WHO HAVE ACQUIRED BRITISH CITIZENSHIP BY BIRTH, DESCENT, MARRIAGE, RESIDENCE IN THE UK OR NATURALISATION.
7. WE RECOGNISE THE FORCE OF OUR LEGAL ADVICE ABOUT THE POSSIBLE BREACH OF JD 226 WHICH, AS WE UNDERSTAND IT, PROMPTED SECTION 2(2) TO BE ENACTED. THIS CONCERNS UK INTERNATIONAL OBLIGATIONS. BUT WE FEEL THAT THE PRACTICAL AND POLITICAL DIFFICULTIES IN IMPLEMENTING SECTION 2(2) OUTWEIGH THE ADVANTAGES OF DOING SO.
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WE THEREFORE INTEND TO RECOMMEND THAT SECTION 2(2) SHOULD NOT BE IMPLEMENTED, AND WOULD LIKE TO HAVE YOUR AGREEMENT IN PRINCIPLE BEFORE WE SEEK THE ADVICE OF THE STEERING COMMITTEE.
PATTEN
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