TNAG-1381-FCO40-1829-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 39

102

SECRET

HKK 040/17 HICK

NED IN BENSTHAY

4FEB 1985

GR 500

SECRET

DESKBY 0209OOZ FCO

DESK BY 04003OZ PEKING

FM HONG KONG 020445Z FEB 85

TO IMMEDIATE FCO

TELEGRAM NUMBER 269 OF 2 FEBRUARY

INFO IMMEDIATE PEKING

106

་

May

MY TELNO 260 AND PEKING TELNO 138 TO YOU: HONG KONG BILL:

NATIONALITY/PASSPORTS.

1. WE HAVE BEEN GIVEN TO UNDERSTAND THAT, IN ADDITION TO THE

POINTS COVERED BY THE DRAFT Q AND A BRIEF IN MY TEL UNDER REF,

LEGCO UNOFFICIALS WILL BE ASKING SEVERAL QUESTIONS CONCERNING

THE POSITION OF THOSE WHO ARE TO BECOME BOC'S.

*

2. THE MAIN QUESTION IS WHAT WOULD HAPPEN TO THE CHILDREN BORN

TO SUCH BOC'S. THIS IS A MATTER OF VERY GRAVE CONCERN TO NON-CHINESE

HONG KONG BDTC'S. OUR UNDERSTANDING OF THE INTENTION IS THAT SUCH

CHILDREN WOULD ALSO BECOME BOC'S, ALBEIT NOT AUTOMATICALLY BUT

UNDER THE EXISTING PROVISIONS OF SCHEDULE 2 TO BNA 1981, IF THEY WOULD OTHERWISE BE STATELESS: SEE PARA 16(A) OF THE HOME OFFICE

NOTE (PAPER C) ATTACHED TO THE DRAFTING INSTRUCTIONS ON THE

HONG KONG BILL. HOWEVER, A CLOSE LOOK AT SCHEDULE 2 REVEALS THAT

THERE IS A SERIOUS SNAG. AS HONG KONG WILL HAVE CEASED TO BE A

BRITISH DEPENDENT TERRITORY, A CHILD BORN IN THE HONG KONG SAR ON OR AFTER 1 JULY 1997 TO A BOC (WHO WAS HIMSELF BORN IN THE HONG

XONG SAR ON OR AFTER 1 JULY 1997 TO A BNO OR A BOC) WOULD BE UNABLE

TO MEET THE REQUIREMENT OF PARA 4(1)(C) OF SCHEDULE 2, AND OUR

LEGAL ADVISERS ARE DOUBTFUL WHETHER THE DISCRETION PROVIDED FOR

IN PARA 6 OF SCHEDULE 2 CAN BE EXERCISED IN SUCH A WAY AS TO

DISREGARD THE TERRITORIAL CONNECTION REQUIREMENT ALTOGETHER. AT

THE SAME TIME, SUCH CHILDREN WOULD, IN OUR READING OF CHINESE NATIONALITY LAW, NOT (REPEAT NOT) ACQUIRE CHINESE NATIONALITY AUTOMATICALLY SINCE THEIR PARENTS, BEING 30C'S, ARE NEITHER

STATELESS NOR OF UNCERTAIN NATIONALITY (SEE ARTICLE 6 OF THE

CHINESE NATIONALITY LAW), AND THE CHINESE HAVE MADE IT CLEAR

THAT THEY WOULD REGARD SUCH PARENTS AS BRITISH NATIONALS.

3. IT MAY BE THAT SUCH CHILDREN COULD BE REGISTERED AS BOC'S

UNDER SECTION 27(1) OF BNA 1981, BUT SUCH REGISTRATION WOULD BE

ENTIRELY DISCRETIONARY AND A REFERENCE TO IT WOULD NOT (REPEAT

NOT) ALLAY THE CONCERN OF THE ETHNIC MINORITIES.

4. A SOLUTION WILL NEET TO BE FOUND TO THIS PROBLEM. ONE POSSIBILITY

SEEMS TO US TO BE FOR THE ORDER-IN-COUNCIL ON NATIONALITY TO PROVIDE

IN SOME WAY FOR PARA 4 OF SCHEDULE 2 TO BNA 1981 TO APPLY TO

CHILDREN BORN TO PARENTS WHO ACQUIRE BOC UNDER THE TERMS OF THE

ORDER-IN-COUNCIL. WE SHOULD BE GRATEFUL FOR YOUR URGENT CONSIDERATION

OF THIS POINT AND FOR YOU ADVICE ON WHAT RESPONSE WE SHOULD GIVE

TO THE QUESTION DURING THE LEGCO ADJOURNMENT DEBATE.

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