TNAG-2628-FCO40-3819-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 67

CONFIDENTIAL

out by the deadline and so lose their entitlement to British nationality.

5. Normally such anomalies would be catered for

by transitional provisions in the legislation. The

Hong Kong Act 1985 contains powers to set cut-off dates for

applications for BN (0) status, but they have not been

exercised. The 1986 Order-in-Council contains no provisions

for setting cut-off dates. The 1986 Order would need to be

amended, by a further order, in order to correct the existing anomalies.

6. There are no signs that Hong Kong people have yet seen

this iceberg looming (if they had we would presumably have

had more applications for BN (0) status), but the prospect of

a last minute rush of applications followed by a wave of

discontent when the applicants discover that they have left

it too late is not pleasant to contemplate. If we leave

the legislation unamended we might face acrimonious court

cases challenging our interpretation of the 1985 Act. The

existing legislation is ambiguous (one reason for the delay

in reaching agreement with Home Office Legal Advisers) and

we could be faced with the embarrassment of a court

judgement that BN (0) s can be registered after 1 July 1997.

Clearly it would do little for confidence, and leave a sour

taste, if the handover of sovereignty were accompanied by this sort of wrangling.

7. The legally most satisfactory solution would be to introduce a new Order-in-Council to exercise the power under paragraph 2 (2) of the schedule to the 1985 Act to set

cut-off dates for applications for BN (0) status; and to

amend the 1986 Order to set (earlier) cut-off dates for

JM3AAL/3

CONFIDENTIAL