Background Note
HONG KONG (BRITISH NATIONALITY) ORDER: PASSPORT MATTERS
The shorthand use of the term "BN (0) Passport" occasionaly focuses attention mistakenly on the passport when it is the nationality status and rights which go with it, and simply recorded in the passport, which are the most important. A number of passport issues do arise however, and indeed the concerns in Hong Kong about passport matters were such that the Hong Kong Government made available a note describing the essentials of the proposed passport policy at the same time as publication of the White Paper there.
Entitlement to a BN(0) Passport
Passports are issued in exercise of the Royal Prerogative at the discretion of the Home Secretary in the UK and of the Foreign and Commonwealth Secretary from consular posts. There is no entitlement to a passport and Parliament has been made aware of the circumstances in which one will be refused; when the movement of minors contrary to Court Orders is involved; where a person is to be arrested; in very rare cases where past or proposed activities render enjoyment of facilities contrary to the public interest; where a person has been repatriated at public expense and substantial debt is outstanding.
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Uniquely however, the draft Order (Article 4(2)) gives BN (0)s an entitlement to hold or be included in a passport. This reflects the terms of the Memoranda associated with the Sino-British Joint Declaration on Hong Kong which links the nationality status with the passport so that denial of a passport effectively denies the status which is an entitlement.
We think that the statutory entitlement to hold and the Royal Prerogative to issue can lie together so that the individual would obtain nationality status but the competent authorities would not be prevented from withholding physical possession of the passport, which remains the property of Her Majesty's Government, from an individual whose travel they wished for legitimate reason not to assist. The detail of how such cases would be handled has yet to be worked out with Hong Kong but should not be difficult. There should be no problem with the first category since one of the parents or if necessary the courts can consent to the issuing of a passport; person taken into custody can be issued with a passport though the police or prison authorities would keep possession; exercise of discretion to refuse on public interest grounds (the third category) would be quite exceptional and would require the express approval of the Secretary of State in the confident belief that Parliament would
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