RE
AKD 340/1.
2 8 AUG 1992
Mr Morris HKD
REGISTRY
FROM:
Miss S Brooks
Legal Counsellor
DATE:
1 May 1992
30
ARRANGEMENTS FOR REGISTERING HKBDTCS AS BN(0)S: HONG KONG TELNO 1053 OF 14 APRIL
1. The above Hong Kong telegram seeks to clear up a legal point. It expresses concern that cut-off dates might conflict with the provisions of JD226 in the United Kingdom Memorandum on Nationality annexed to the Sino/British Joint Declaration. But the problem is not to do with JD226; it is to do with JD227. This provision and the Hong Kong Act 1985, Schedule, paragraphs 1 and 2 make it clear that the BNO status is to be acquired before 1 July 1997. In other words, the 'escape clause' which we proposed in FCO telno 549 and 550 of 25 March would only operate so as to enable applications for BNO status submitted before the cut-off date to be processed between the cut-off date and 30 June 1997.
2.
It will be necessary as a consequence of legislating for the 'escape clause' that the Hong Kong (British Nationality) Order 1986, Article 4(2) is deleted. This will remove the present entitlement to be registered as a BN(0) up until 1 July 1997. This is very likely to lead to complaints, and even applications for judicial review, by persons who apply to be registered after the cut-off date and are refused registration. The discretion to register persons who have applied before the cut-off date the
escape clause', will not extend after 30 June 1997.
3. It is Hobson's choice between a breach of the UK Memorandum and problems with the Chinese, or problems with potential applicants, including the possibility of judicial review, who have left it too late to apply before the cut-off date. The Home Office appear to be able to contemplate the possibility of applications for judicial review although they have not yet put this matter to
Ministers. Accordingly it seems preferable to be consistent with the UK Memorandum, JD227 and avoid problems with the Chinese.
AE.ANH
(69)
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