TNAG-0903-FCO40-1113-Implications-for-Hong-Kong-of-changes-in-British-nationality-1979 — Page 124

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foreign nationals, have no right of abode in the UK, while - if the existing

Rule is kept Commonwealth citizens whose sole connection was through a grandparent

would be admissible for settlement. This situation could be avoided by extending

the present UK-born grandparent Rule to include foreigners, but the number of US citizens (including those of Southern Irish descent), South Africans and others

who would stand to benefit would be very large, and we presume that Ministers

would not favour such a course.

12. A further criticism which has been made is that the Rule constitutes indirect

racial discrimination. This can be countered by the arguments that it is reasonable

to pay some regard to UK ancestry, and that the concession will in due course

benefit people of all races, including descendants of the many citizens of the UK

and Colonies of West Indian descent who have emigrated to the West Indies in the

last few years, and of those British-born Asian women who returned to India to join husbands during the last period (1969-74) when husbands were not generally

permitted to join wives in the UK for settlement. However, coloured immigration

to the United Kingdom only began on a significant scale in the late 1940s and as

the concession is not applicable to those below working age, there will be few

coloured people eligible for at least the next 15 years. For this reason inclusion

of abolition in a package of amendments to the Immigration Rules might provide a

useful defence to charges that the changes as a whole bore unfairly on the ethnic

minority communities. If the Rule is to go, it would clearly be preferable to

abolish it now, rather than in 10 or 15 years, when such a step could be interpreted

as a reaction to the imminent eligibility of significant numbers of Asians and

West Indians.

International obligations

13. It has not so far been suggested that the nature of the Rule is such as to

contravene any of the provisions of the European Convention on Human Rights.

However, we have hitherto, on legal advice, taken the line that it did not extend

to claims based on illegitimate descent through the paternal line. There is a risk

of a successful petition against this interpretation, based on Article 14 of the

Convention, which states that: "the enjoyment of the rights and freedoms set forth

in the Convention shall be secured without discrimination on any grounds such as...

social origin... birth or other status". Extension to those claiming illegitimate

descent through the paternal line would inevitably lead to some increase in numbers

though this might be small, in view of the difficulties of proving descent in

such cases.

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