TNAG-1384-FCO40-1832-Future-of-Hong-Kong-nationality-and-citizenship-1985 — Page 178

Mr W Ehrman

CONFIDENTIAL

Our Reference NTY/85 1/387/3

15 August 1985

categories of persons who are BDTCs by virtue of a connection with Hong Kong, but who were inadvertently ommitted from the current Ordinance. It would seem from our discussion with Hong Kong officials that the bulk of these will be women registered in Hong Kong under section 6(2) on the grounds of marriage to UK born men.

Turning to the draft Order in Council, we have accepted EXCO's proposed amendments to Article 4(3) and 7(2). As regard the latter, for consistency we have similarly re-ordered the position of British Nationals (Overseas) in the other sub-paragraphs of this Article.

Two of EXCO's comments suggest some misunderstanding of the Order. The first relates to Article 2(1)(d). This Article does not prevent a child born in another Dependent Territory before July 1997 from becoming a BDTC at birth under the provisions of section 15(1) of the BNA 1981. It simply provides that if such a child is so born to parents settled in Hong Kong, he or she will be regarded as having a connection with Hong Kong for the purpose of this Order and will therefore be liable to loss of BDTC status on 1 July 1997. This seems entirely reasonable. We have agreed that a BDTC born in Hong Kong after 1 January 1983 while his or her non-Hong Kong BDTC parents were only there temporarily should not lose BDTC status in 1997 (Article 2(3)). Conversely a person born in another Dependent Territory while his or her Hong Kong BDTC parents were there temporarily should lose. Otherwise a large loophole is left in the arrangements which would benefit only those who could afford to take advantage of it.

so.

Secondly, EXCO have commented that Article 4(3) is wrong in principle. This is not

It is formulated to comply with the wording of the UK Memorandum. Only those who are BDTCs on 30 June 1997 may retain BN (0) status. Thus a person who has ceased to be a BDTC before that date cannot, under the terms of the Memorandum, retain BN (0) status beyond that date.

EXCO proposed two amendments to Article 4(2) which we do not consider we can agree to.

The first is that the words "stating the holder's right of abode in Hong Kong" should be added at the end of this paragraph. There are two reasons why we cannot accept this proposal. First, right of abode in Hong Kong is an administrative matter for Hong Kong and it is not right to include it in Westminster legislation. The question of the endorsement to be entered in BN(0) passports is a matter to be decided between FCO, Hong Kong and Passport Department. Secondly and consequently before any endorsement can be entered into a BN (0) passport the holder will have to have obtained a Hong Kong Identity Card stating his or her right of abode in Hong Kong. Some persons may not have acquired such a card before applying for a BN (0) passport. In such cases the endorsement will have to be entered later once the identity card has been obtained. It would therefore be misleading to suggest that the endorsement would automatically be entered in the passport at the time of issue.

EXCO have also asked that Article 4(2) be revised to accord more closely with the wording of the UK Memorandum. We do not fully understand EXCO's concern on this point. The Memorandum deliberately avoids any mention of nationality, although it is clearly understood that the status referred to therein is a form of British nationality. Hong Kong have accepted the principle that passports flow from nationality, and not the other way round. As you know, we would have preferred

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CONFIDENTIAL