TNAG-1381-FCO40-1829-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 134

CODE 18-77 7/84 AWO Ltd.

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are born in Hong Kong to Gibraltarian parents may be thought to have a closer connection with Hong Kong that is, their own personal connection than a BDTC born in Gibraltar to Hong Kong parents. Such persons do arguably come within the meaning of the phrase "by, virtue of a connection with Hong 8. Kong" in the memorandum. This difficulty gives a clear

illustration of the danger inherent in using the Immigration Ordinance of Hong Kong for this purpose. Another illustration was given in paragraph 3 of Mr Emergy's minute of 23 November 1984, a point which, in my view, has never properly been answered. Another example is furnished in relation to those persons who acquire BDTC status by adoption (section 15(5) of the BNA 1981). Under this section, a person who is, for example, adopted in Hong Kong by parents who are (or one of whom is) BDTCS, becomes a BDTC. The Immigration Ordinance of Hong Kong however confers Hong Kong Belonger status only upon those persons who become BDTCs by adoption in Hong Kong whose parents (or one of whose parents) have an approp- riate qualifying connection with Hong Kong, or are settled there. If therefore a parent has either a connection with Hong Kong which is not an appropriate qualifying connection, or a connection with another Dependent Territory, that adoptee will not have Hong Kong Belonger status. There are however arguments why he should be included as a BDTC "by virtue of a connection with Hong Kong".

9. My view is that the whole idea of defining the BDTCs who are to lose their BDTC status by means of using the Hong Kong Immigration Ordinance produces, in practice, an in- complete definition. I also see from the telegram (no 144 of 17 January) from Hong Kong that Hong Kong agree, and also that there seems to be little possibility of making appropriate amendments.

10. Furthermore, it seems to me that there are real problems of principle in this course of action, even apart from the difficulties which have arisen on the technicalities of the Hong Kong Ordinance. One is that the Hong Kong Ordinance is drafted in difficult terms and is hard to construe. The more important point is that, if the Ordinance is scheduled as a Hong Kong Ordinance, then it should presumably be con- strued as a Hong Kong Ordinance, and not as a UK one. It would be preferable for any list of BDTCs by virtue of a connection with Hong Kong to be construed in accordance with English law. It is possible that as a matter of Hong Kong law expressions such as "parent" could mean something different from their meaning in English law. Not only is this another unnecessary complication, it also makes it even harder to say which BDTCs are included in the category of those possessing Hong Kong Belonger status.

11. This problem would be avoided if the categories who have Hong Kong Belonger status were simply listed without reference to the Hong Kong Ordinance. There could then also be included the other categories of BDTCs who we may feel ought to be additionally to be included. In such a situation, however, we would be back in a position of having a list of categories, which, from Mr Emery's minute to you of 4 January 1985 seems to have been discounted, as cumbersome. There is of course also the point made in Hong Kong's telegram 144 of 17 January

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