TNAG-2628-FCO40-3819-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 97

I would conclude that in addition to the other arguments about the difficulties of setting cut-off dates, imposing a cut-off date for BNOS would be ultra vires the Order which does not permit this and imposing a cut-off date for BDTCs would be ultra vires the Order and the Act, neither of which permit this.

3.

I suggest that the 1986 Order is amended so as to set cut-off dates and provide for transitional arrangements for BNO applicants and to provide for transitional arrangements for HKBDTC applicants. Amending Article 4(2) of the Order to remove the entitlement to be registered as a BNO up to 1 July 1997 is probably not a safe option. Alternatively, the 1986 Order could be revoked and replaced by a new Order which contains in addition such provisions.

4. The question of an advertising campaign is in my view a matter of policy. If the Order were not amended, given that Article 4(2) of the Order is ambiguous, a policy decision could indeed be taken to the effect that applications in the pipeline before 1 July 1997 could be registered as BNOS after 1 July 1997; but surely there is no vires under the order to allow for this until the power to make transitional provisions is exercised in an amending Order to the 1986 Order? The same is true of BDTCs if a similar policy decision were to be taken in respect of them.

Yours sincerely,

Shelaph Brooks.

CC:

S Brooks

Legal Counsellor

C Kelly, B4 Nationality Division,

Home Office, Liverpool

Mrs C Kellas, Home Office,

Lunar House, Croydon

J Morris, Hong Kong Dept, FCO

CW3AAJ