TNAG-2629-FCO40-3820-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1992 — Page 145

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B

Order in Council on the grounds that it would remove their entitlement under current legislation to register up to and

including 30 June 1997. In order to minimise the risk of

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.

(b) BN (0)S

7.

There is a parallel risk of a last minute rush to

acquire BN (0) status. The existing legislation on BN(0) status is conflicting. The Hong Kong (British Nationality)

Order 1986, Article 4(2) gives an entitlement to be

registered as a BN (0) up until 1 July 1997. But this

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.

8.

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 the setting of cut-off dates and transitional provisions which operated only before 1 July 1997. There is less risk of such a challenge if there were transitional provisions which operated after 1 July 1997 but this would lead to problems with the Chinese, Since the UK Memorandum attached to the

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CONFIDENTIAL