TNAG-2629-FCO40-3820-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 126

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B

such challenge, the Hong Kong Government have suggested a

discretion in the Order, whereby the Home Secretary could

register an applicant before 30 June 1997, where the applicant had a good reason for missing the cut-off dates.

The Hong Kong Act 1985 (Schedule, paragraph 2(3)) appears to

allow for the making of transitional arrangements.

BN (O) S

6.

The Hong Kong (British Nationality)

gives an entitlement to be until 1 July 1997. But this

There is a parallel risk of a last minute rush to acquire BN (0) status. The existing legislation on BN (0)

status is conflicting. Order 1986, Article 4(2) registered as a BN (O) up

conflicts with both the Hong Kong Act 1985 Schedule, paragraph 2(i) (b) and the UK Memorandum associated with the

Joint Declaration, which make it clear that the status must

be acquired (ie processed) before 1 July 1997. FCO and Home

Office legal advisers consider that under the law as it

stands, the setting of cut-off dates in relation to BN (0) s

would present a real risk of challenge. But the power

exists under the Hong Kong Act 1985 (Schedule, paragraph

2 (2)) to make an Order in Council to set cut-off dates for

applications for BN (0) status.

7.

Even with an Order in Council, there is a risk that potential applicants who have an entitlement to be registered as BN (0)s up to 1 July 1997 might challenge a

scheme of cut-off dates which operated only before 1 July

The UK Memorandum attached to the Joint Declaration

specifies that BN (0) status will be acquired only if the applicant holds a BN (0) passport issued before 1 July 1997 (except in the case of babies born between 1 January and 1 July 1997, who have until the end of 1997 to obtain BN (0) status). Although the UK Memorandum does not have legal force, it represents a solemn undertaking to the Chinese,

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