Miss Dews
CONFIDENTIAL
HKD 340/4 KD_340/4
RECEN
REGISTRY
1 SFEB 1991
DE
PA
Faxed
to PS/GH
Feb 20
CC
Mr R Morris Mr J Morris, FCO
HONG KONG ACT 1990: POTENTIAL SHORTFALL OF APPLICANTS
At our meeting last week with Mr Morris, we agreed that I should investigate with Legal Advisers what action, if any, might be taken if, against expectation, there was a significant shortfall in applications for citizenship.
Miss Davies has provided the attached opinion which confirms what we, the FCO and HKG expected. If fewer than the upper limit set in the Direction apply under the points-driven classes (GOC and DSC), the Governor is bound to recommend all who are eligible and of satisfactory character. In the SSC and EC, which operate by invitation, the Governor can leave places unfilled. (This would be likely to happen only in the EC where the Governor might not be satisfied about quality of applicant.)
A further Direction to cancel the first one and reduce the number of places to be recommended in the first tranche would seem likely to be ultra vires. The only available option for getting round a shortfall of applicants in the GOC and DSC would be to extend the closing date- for applications. The Governor would do this by local regulation.
рест
Msbrooks,
Legal Advisers, (K 199)
Grateful for a second opinion on Ms Dowies' legal advice,
J Morris
HKD
× 2068 WH304
13/2
SevenTage Галий
J S PAGE
11 February 1991.
DONEDELTAT
38
E.R.
Mr J Page
Hong Kong Unit
B2 Division
CONFIDENTIAL
cc: Mr Osborne
HONG KONG ACT 1990:
POTENTIAL SHORTFALL OF APPLICANTS
You asked for advice on what action the Governor or Secretary of State could take if many fewer applicants applied under the nationality scheme than previously anticipated.
particular, you asked whether the Governor would be bound to register every applicant within the upper limit set out in the Secretary of State's Direction in each occupational group provided the maximum number set out in the Direction were not exceeded.
2. Section 1(3) of the 1990 Act provides that the Secretary of State may direct the Governor to make not more than a specified proportion of recommendations in any period specified in a Direction. A Direction was made by the Secretary of State on 7th November 1990, the day the Act came into force. That Direction provided that in the period from 1st December 1990 to 1st January 1994, the Governor "shall not make more than" a maximum number of recommendations in the General Occupational Class, the Disciplined Service Class and the Sensitive Service Class.
3.
The Order in Council setting out the selection scheme came into force on 1st December 1990. In relation to the General Occupational Class, it provides in article 9 that an applicant "shall be recommended" if the number of points allocated to him in accordance with the scheme brings him within the relevant quota. By a combination of articles 7 and 10, the relevant quota is determined by reference to a "periodic quota", which in turn is related to the maximum number who can be recommended by virtue of a Direction by the Secretary of State in any given period.
4. In relation to the Disciplined Service Class, article 20 provides that an applicant "shall be recommended" if within the relevant quota. Again, the relevant quota is determined by reference to the maximum number set out in a Direction.
5. In relation to the Sensitive Service Class, article 23 does not provide for a points scheme. The Governor may recommend up to the total quota set out in the scheme. maximum number for the first tranche is set out in the Direction.
The
6. In relation to the Entrepreneurs Class, article 24 again sets out no points scheme but provides that the Governor may recommend up to the total number provided by the scheme. No maximum number for this class is provided for in the Direction.
CONFIDENTIAL
CONFIDENTIAL
E.R.
The regulations made by the Governor in Hong Kong, which came into force on 1st December 1990, provide in regulation 4 that an application for a section 1 recommendation shall be made within 3 months of the commencement of the period specified in a Direction by the Secretary of State (in the case of the first Direction, before 1st March 1991).
8.
I think the combined effect of these provisions is that in relation to the General Occupational Class and the Disciplined Service Class, the Governor is bound to recommend those applicants with the highest points score up to the maximum number set out in the Direction who applied before 1st March 1991. If there are insufficient applicants to fill the quota, I think the Governor is bound to recommend all applicants who apply and are eligible. In relation to the Sensitive Service Class and the Entrepreneurs Class, the Governor has a discretion as to how many to recommend within the maximum number provided. If there are insufficient applicants, or insufficient applicants of an appropriate quality, the Governor can leave the places unfilled. They will then be available to be filled in the second tranche.
9.
You asked specifically whether the Secretary of State could issue a further Direction, in effect cancelling the Direction made on 7th November 1990 and setting lower maxima. I have grave doubts about whether such a Direction would be lawful. Having once exercised his power to make a Direction under section 1(3), in relation to a given period, any subsequent attempt by the Secretary of State to exercise the power could be ultra vires. There is no specific power in the 1990 Act to revoke or amend a Direction. Although section 12 (1) of the Interpretation Act 1978 provides that a power conferred by an Act may be exercised from time to time "as occasion requires" unless the contrary intention appears, the implied power to revoke or amend in section 14 of that Act does not extend to "Directions". Even if such a Direction could lawfully be made, I imagine there would be major policy arguments against it, not to mention political embarrassment to Ministers. The purpose of the scheme was not after all to encourage an elite to take up British citizenship, but to encourage that elite to stay in Hong Kong. Perhaps a shortfall of applicants is the best evidence that the confidence to remain in Hong Kong now exists.
10. The Hong Kong Government could of course try to encourage further applications, either by invitation after the closing date (as envisaged in their regulation 4) or by extending the closing date by new regulations.
7 February 1991
Rosemary Naviel
ROSEMARY DAVIES Legal Adviser's Branch
CONFIDENTIAL
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Private notes are available after approval.