TNAG-2669-FCO40-3866-Hong-Kong-Civil-Service-1993 — Page 6

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XCX(93)35

and satisfied that the change falls completely in line with the Basic Law position. However, consultation is bound to be protracted and the end result is by no means certain. An AECS member in the process of being localised would probably take Government to court before we could secure an agreement with the Chinese.

Possible Policy Changes

Definition of "Permanent Resident"

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In the long run, it seems likely that a definition along the lines suggested by Mr Li (paragraph 14 above) will be the most appropriate. This would be consistent with the Basic Law and relatively simple to administer. However, moving quickly to such a definition could have political complications. Discussions are still continuing with the Chinese on the future definition of "permanent resident" for the purposes of immigration controls. Any new definition adopted now, in such a sensitive area as civil service employment, could be seen by the Chinese as pre- empting those discussions and/or as an unjustified British intervention in the interpretation of the Basic Law.

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Another option would be to develop the ideas suggested by Mr Li into a more stringent test of domicile. All the circumstances of the individual officer would then be looked into in order to establish the extent of the links with Hong Kong. Indications such as place of birth, educational background, residence of parents, spouse, children and siblings and ownership of property could be considered. A serious drawback is that this would be very complex to administer as many of these factors could change. We may also be forced on grounds of equality of treatment to apply such a test to all local officers.

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On balance it seems more prudent, if we have to make changes now, to adopt the existing definition of "permanent resident" in the Immigration Ordinance (Annex D). This would admittedly be an interim arrangement as the definition will eventually be amended to align it with the Basic Law. Nevertheless, it is tenable from the BOR point of view, relatively restrictive in that most overseas officers will have to naturalise as British Dependent Territories Citizens (BDTC) before becoming permanent residents, and less inflammatory vis-a-vis the Chinese.