TNAG-2628-FCO40-3819-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 92

applications for registration as BNO(s) are processed before 30 June 1997 is to exercise the power under paragraph 2, sub-paragraph (2) referred to above to set cut off dates.

3. The Hong Kong Act 1985 Schedule, paragraph 2, sub-paragraph (3) allows for transitional provisions to be made 'as necessary or expedient'. As you know, on the one hand, Article 4(2) of the 1986 Order would appear to give an entitlement to registration as a BN (0) until 1 July 1997. On the other hand, the Hong Kong Act 1985 Schedule, paragraph 2(1)(b) and the UK Memorandum associated with the Sino-British Joint Declaration on the Question of Hong Kong make it clear that the status must be acquired before 1 July 1997. I went into various arguments on this in the first of my two letters to you, that of 22 October 1991. We reached the view (your letter of 7 November 1991 to me) that under the existing law an applicant for BN (0) status must be registered before 1 July 1997. The question is whether an Order under the Hong Kong Act 1985 Schedule, paragraph (3) could provide for transitional provisions to enable applications which could not be processed before 1 July 1997 to be processed after that date? Is there a vires problem? This course of action could be seen to be in breach of the UK Memorandum and in any event is likely to cause political problems with the Chinese. On the other hand, if transitional provisions were made which operated before 1 July 1997 so as to process applications put in after cut off dates, but before 1 July 1997, this would conflict Article 4(2) of the 1986 Order. At present, persons have an entitlement under Article 4(2) to be registered up to 1 July 1997 which they would lose if Article 4(2) were amended, as it would have to be with pre-1 July 1997 transitional provisions. Aggrieved potential applicants might challenge the setting of cut off dates if these are imposed together with transitional provisions which operate before 1 July 1997. There is less risk of challenge if the transitional provisions operated after 1 July 1997 but this would lead to problems with the Chinese.

BDTCs

4. The question here is whether the vires exist to make transitional provisions and set cut off dates with regard to applications to be registered or naturalised as BDTCs. The status of BDTC continues until 1 July 1997. Before that date, persons are entitled to apply for that status. The only purpose in applying for it in the last few years before 1 July 1997 is to enable the successful applicant