TNAG-1381-FCO40-1829-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 109

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The circumstances in which a State may derogate from this obligation are fairly narrow, and, briefly, include only cases of national who in various circumstances, are non-resident in the Contracting State, cases where the nationality has been obtained by fraud or misrepresentation, and cases of disloyalty. None of these cases has any great significance in the present context.

the

6. As regards this category of person, provisions of Article 5 (1) of the Order as presently drafted enable the UK to comply with its international obligation under Article 8 (1) of the Convention. Most BDTCs either will, by 30 June 1997, have registered as BN (0)S, or alternatively will be considered as Chinese (or other) nationals. The remainder will, according to Article 5(!), become BOCs. No former BDTC will therefore become stateless on 1 July 1997, thus satisfying the requirements of Article 8(4). The commitment in paragraph (6) of the Memorandum to the effect that no-one will, after 30 June 1997, acquire either BDTC status by virtue of a connection with Hong Kong, or the new BN (0) status, also appears to be satisfied by these provisions, as the status then acquired will be BOC status, although I am not sure whether the Chinese will regard this as what was intended. (The reference in Article 5 (1) to Article 3 should, I think, be a reference to Article 2).

7. As regards those children born after 1997, the obligations assumed by the UK under Articles 1 and 4 of the Convention are the most significant. Under Article 1,

"1.

A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless."

we have trid them. They are

content.

This nationality may be granted to such persons either at birth, by operation of law, or on an application being lodged with the appropriate authority. In the latter case, the grant of nationality may be subject to specified conditions as to the age of the applicant, his residence in the Contracting State, his not having committed criminal offences, and his having always been stateless.

(Article 1(2) (a) (d)).

8. Under Article 4.

"A Contracting State shall grant its nationality to

a person not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of its parents at the time of the person's birth was that of that State."

Again, that status may be granted either at birth, by operation of law, or on an application being made to the appropriate authority, and, in the latter case, the grant may be conditional upon matters similar to those set out in Article 1(2). (See Article 4 (2) (a) - (d)).

Schedule 2

paragraphs 1 and 2

9. In relation to these people, it is also apparent that the provisions of the proposed Article 5 (2) are sufficient to satisfy the UK's obligation under the Convention, particularly when taken in conjunction with the existing provisions of schedule 2 of the BNA 1981. confers the right to British ationality upon the children of BOCs, if they are born in the UK, or in a dependent territory, if they would otherwise be stateless. Paragraph 3 confers the right to such nationality by station on any persons born in the UK, but subject to certain conditions being fullfilled;

CONFIDENTIAL

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