TNAG-1382-FCO40-1830-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 111

1

Mr Galsy

Minulé

Galsworthy HKD

CONFIDENTIAL

!

HONG KONG (BRITISH NATIONALITY) ORDER 1985

HKK 040/4.

22 MAR 105

FILE

186

•

Mr Grainger has shown me a copy of your minute of

18419 March.

2.

I think we could be in some difficulty with the Chinese if we sought to maintain the interpretation of the UK Memorandum which you suggest. The essence of it seems to be that it would be in accordance with that Memorandum if we were to amend our nationality law before 30 June 1997 so as to change the criteria to be applied in order to determine whether a person connected with Hong Kong was a BDTC. Carried to its extreme this thesis would mean we could amend our law so that no person who on 29 June 1997 qualified as a BDTC by virtue of a connection with Hong Kong would retain that citizenship, but would on that date automatically become instead a "British citizen (Hong Kong)" a new status which, apart from the name, would be exactly the same as that of a BDTC and could be retained indefinitely. There would thus (so the argument would run) on 30 June 1997 be no persons at all who fell literally within the provisions of paragraph (a) of the Memorandum. This would deprive the whole of the Memorandum, with the exception of the first sentence of paragraph (b), of all practical effect.

3. If we were to advance arguments of that kind I think that the Chinese would have some justification in complaining on the grounds that this would (quite apart from displaying bad faith) defeat the object and purpose of the Memorandum. I realise of course that the changes in our nationality law which you envisage would not, although based on the same principles, be so far reaching as the ones I have mentioned above. I suppose it is possible therefore that the Chinese might in fact acquiesce.

4. However a more serious practical difficulty is that the Order you propose would almost certainly be ultra vires the Hong Kong Act. Paragraph 2 of the Schedule does not authorise such changes to the British Nationality Act 1981, and any attempt to rely on paragraph 3 would be such an unexpected use of the powers conferred by that paragraph that the vires of the Order would be open to question. No such Order could therefore safely be made.

21 March 1985

Copy to:

Mr Grainger, LA Mr Peirce, HKD Mrs Priest, HKD

CONFIDENTIAL

Bunows

F Burrows

Legal Counsellor