TNAG-2371-FCO40-3446-Hong-Kong-nationality-UK-passport-scheme-British-Nationalit-1991 — Page 120

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MDLIAN 6770

WERE NOT RETURNED BY THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS FOR RECONSIDERATION. THEY FURTHER ASSERTED THAT, BY UNDERGOING THIS PROCEDURE, A FUTURE IMMIGRATION ORDINANCE, AMENDED ON A BASIS AGREED BETWEEN THE BRITISH AND CHINESE SIDES THROUGH CONSULTATION, WOULD BE SHOWN TO BE IN CONFORMITY WITH THE BASIC LAW AND THEREFORE NOT OPEN TO CHALLENGE IN THE SAR COURTS ON THOSE GROUNDS.

4. THE BRITISH SIDE HAVE CAREFULLY CONSIDERED THE VIEWS OF THE CHINESE SIDE, BUT STILL BELIEVE THAT A SOLUTION BASED ON

INTERPRETING THE RELEVANT PROVISIONS OF THE JOINT DECLARATION AND BASIC LAW AS FOLLOWS

(A) BOTH PARENTS OF SUCH PERSONS SHOULD BE QUALIFIED FOR RIGHT OF

ABODE IN HKSAR :

(B) THE PARENTS SHOULD HAVE RIGHT OF ABODE IN THE HKSAR AT THE

TIME OF BIRTH OF SUCH PERSONS: AND

(C) THE PERSONS MUST BE BORN ON OR AFTER 1 JULY 1997, WOULD BE PREFERABLE.

IN ANY EVENT, WHATEVER COMMON INTERPRETATION OF THE RELEVANT PROVISIONS OF THE JOINT DECLARATION IS AGREED BETWEEN THE TWO SIDES, WE SEE CERTAIN DIFFICULTIES IN REFLECTING THAT INTERPRETATION IN LEGISLATION. THE CHINESE SIDE HAVE SUGGESTED THAT HONG KONG SAR LEGISLATION MAY BE GUARANTEED AS NOT CONTRAVENING THE BASIC LAW BY THE PROCEDURE OF BEING REPORTED TO THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS FOR THE RECORD AND NOT RETURNED. WE HAVE SERIOUS DOUBTS ABOUT THE EFFECTIVENESS OF THIS SUGGESTION FOR THE FOLLOWING REASONS :

(A) ON THE FACE OF IT THE QUESTION OF RIGHT OF ABODE IN THE SAR IS NOT A MATTER RELATING TO ''AFFAIRS WITHIN THE RESPONSIBILITY OF THE CENTRAL AUTHORITIES'' OR A MATTER ''REGARDING THE

RELATIONSHIP BETWEEN THE CENTRAL AUTHORITIES AND THE REGION YET THESE ARE THE ONLY AREAS IN ARTICLES 17(3) AND 158 (3) OF THE BASIC LAW ON WHICH THE NPC IS GIVEN POWER TO DETERMINE THE COMPATIBILITY BETWEEN HONG KONG LAWS AND THE BASIC LAW.

(B) AS A RESULT, COURTS IN HONG KONG ARE LIKELY TO TAKE THE VIEW THAT FAILURE BY THE NPC TO ''RETURN' A LAW ON RIGHT OF ABODE CARRIES NO IMPLICATIONS FOR THE COMPATIBILITY OF THAT LAW WITH THE BASIC LAW SINCE IT FALLS OUTSIDE THE SCOPE OF ARTICLE 17(3),

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