TNAG-2636-FCO40-3827-Future-of-Hong-Kong-nationality-British-undertakings-1992 — Page 56

not companies in any normal sense. I consider, therefore, that there is a risk that the awarding of points to a person based on the consideration that the bodies referred to in paragraph 1 are companies could be considered to be ultra vires the Order.

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3. On the other hand, you have included amongst the papers you have sent me a list for administrative purposes which sets out what are considered to be British undertakings. The list includes a company or other corporate body incorporated under the law of the United Kingdom which operates in Hong Kong' (in fact none of the bodies referred to in paragraph 1 operate in Hong Kong, but a Home Office legal adviser has already advised that 'British undertaking may include a company or firm established in the UK and that it would not be proper to take into account whether the company concerned also had a close connection with Hong Kong). The relevance of this administrative list is that it includes other corporate bodies besides companies and it also tacitly acknowledges that 'other corporate bodies' are something other than companies. This list may be ultra vires the Order for the very reason that it includes other corporate bodies besides companies. But persons may already have been awarded points on the basis of connections with corporate bodies other than companies. We would find ourselves in an awkward position if we were to turn down some persons connected with corporate bodies other than companies, if other persons have already been treated favourably on the basis of their connections with such bodies.

4. I suggest we put this to the Home Office. It is after all their Order and they presumably know what was intended by the drafting. I have considered whether to write myself to a Home Office legal adviser but as this is a question of some importance I think it is preferable for you to write to Home Office administrators who ought also to be aware of this problem. I suggest that you ask them, if necessary, to refer the point to the Home Office legal advisers. Another consideration is that I have found in the past that it is very difficult to obtain a relatively speedy opinion from the Home Office legal advisers advising on nationality questions to do with Hong Kong. (You and Mr Morris will recall the problems I had previously in trying to get them to focus on the BN (0) and BDTC problem.) I will be happy to look at your draft letter to the Home Office.

Shelagh Brooks

Shelagh Brooks

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