TNAG-2628-FCO40-3819-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 22

CODE 18-77

Reference....

fur Woodrow

Ju 2516.

From: Mr Paul Berman

Assistant Legal Adviser

K 157 270 2579

Date: 23 June 1992

CC:

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Mr D Austin, RID (W/out Encs) Mr J Wilde, WIAD Mr P Carter, PPD Mr M Belof, SAAD Miss H Morgan-Brown,

Security Dept

Mr J Morris, HKD

Mr NJ Morris, NTCD

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Mr P Baker

ECD(I)

CIVIL SERVICE NATIONALITY REQUIREMENTS ARTICLE 48(4)

1.

Thank you for your comments, and those of other departments, relating to my draft letter to Anthony Fraser (circulated with my minute of 11 June). I enclose a copy of

the letter as submitted to Mr Fraser.

2. The purpose of this letter is of course to establish which categories of nationality might be included in the public service "core" nationality requirements, having regard to EC law. The case law of the ECJ indicates that public service posts are those which "require a special relationship of allegiance to the State on the part of persons occupying them and reciprocity of rights and duties which form the foundation of the bond of nationality" (EC case 65/85 Lawrie-Blum). Further to Mr Morris's minute of 19 June, the fact that certain nationality categories do not have the right of abode in the UK is clearly relevant to any legal assessment of whether these categories are to be eligible for recruitment to the public service "core". However, the absence of a right of abcde does not mean that an individual can not obtain employment in the UK, and in the civil service in particular.

3.

Without wishing to pre-judge any opinion delivered by the Law Officers, it is possible that more than one approach will be found to be compatible with EC law. If this is the case, then departments will need to reach agreement, in the light of policy considerations, on which nationality categories they do indeed wish to include in the public service "core"

nationality requirements. You, and copy recipients, may wish to give further consideration to this matter.

Paul Raman.

Paul Berman

Assistant Legal Adviser

PB2 ABL