TNAG-1382-FCO40-1830-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 148

CODE 18-77

AWO Ltd. 7:84

Mr Grainger Legal Advisers

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kx. 1p- H.K.

Blunt-Peking

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Referents KK 040/4

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HONG KONG (BRITISH NATIONALITY ORDER) 1985

8 MAR 1985 !

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1. Following our discussion concerning the draft Order, I attach a redraft of Articles 1-5. I have marked suggested amendments to the remaining Articles and Schedule 2 on the original Home Office draft. These amendments are self-explanatory and follow your suggestions and those of Miss Veale. The only specific comment I would make on this part of the draft Order is that Schedule 2 needs to be completed in respect of enactments which have been made since the passing of the British Nationality Act 1981, for example, the Aviation Security Act 1982. I have not checked the footnotes to Schedule 2 but I presume that either you, NTD or the Home Office will do so.

2.

The more important amendments relate to Articles 1-5. I do not pretend that the redrafted Articles represent a final version but I think they make a further step in the right direction. I have set out below a brief commentary on the redrafted Articles 1-5.

Article 1

I do not see any need for the phrase "except for Article 5 which will come into operation on 1st July 1977". The redrafted Article

5 makes it clear that the proposed amendment to the 1981 Act will only have effect as from 1st July 1977.

Article 2

I agree with your view that the phrase "circumstances connected with Hong Kong" is difficult and indeed its use in Articles 2 and 3 and Schedule 1 might lead to difficulties of interpretation. I agree that we should try to preserve the wording of the Memorandum and the Bill ("by virtue of a connection with Hong Kong") as far as possible. I have therefore proposed a formula which relates to a person "having a connection with Hong Kong" which not only follows the framework used in Section 22 of the 1981 Act but also has the advantage of being able to define the connection on a personal basis rather than through the use of abstract nouns or circumstances. It may thus be clearas to what a person must have done or suffered in order to be considered as having a connection with Hong Kong.

There is no difference in legal effect as to whether or not you define the connection in Article 2 itself or in a schedule. Since it is, however, the most important provision of the Order, there may be presentational reasons for having the connection stated clearly at the start of the Order.

As for defining the connection, the only two amendments of substance to the Home Office draft are the inclusion of a provision referring to being "settled in Hong Kong" (to reflect Section 15 (1) of the 1981 Act) and the inclusion of a provision dealing with Crown service under the Government of Hong Kong rather than merely "secondment" (to reflect Section 16 (2) of the 1981 Act). I do not see any reason why the form of designated service should not be specified although I take the point that if

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