TNAG-1189-FCO40-1491-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1982 — Page 2

B

4

This legal advice has been considered by the Attorney General whose Opinion is at Annex B. Briefly, that Opinion argues that the following propositions are well-established by the cases and the works of internationally- respected academic writers w

(a) it is doubtful whether the 1981 Act does, despite its title, define g nationality. Generally, its purpose. is to categorise citizenship;

(b)

(c)

(d)

(e)

?

7

citizenship is to be constrasted with nationality. The term citizen, properly used, describes a status enjoying rights (sometimes differing for different cate- gories) which are given by the domestic law of a state to those who, owing. allegiance to that state, dare, for the purposes of international law. described as its nationals; the sum total of all categories of citizen form the nationals of a state. Colonial citizens owing allegiance to a sovereign state are included amongst its nationals;

it is nationality (not citizenship) which gives rise on the one hand to the. duty of allegiance to the state and on the other to the right to protection by the state when abroad. Under English law, this right, though recognised by the highest courts, is one of imperfect obligation in that it cannot be enforced by legal action against the Crown;

་

a passport is issued by virtue of the Royal Prerogative by the Government of the United Kingdom under the hand of the Foreign Secretary on behalf of the Queen. "The passport is now the method by which the Crown accords its protection to persons when abroad. It is the

اء

Sovereign's express command to her repre- sentatives that protection is to be given, and in its normal functioning puts into. operation the Crown's protective system.";

even an alien, once he holds a British passport, enjoys the protection of the Crown, so that if he is adherent to the Queen's enemies he is guilty of treason, unless and until he has renounced that protection;

CONFIDENTIAL