TNAG-2931-FCO40-4206-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1993 — Page 6

CODE 18-77

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become BN (0)S. The first point to make is that the United Kingdom Memorandum is a declaration of intention by the Government which is specifically made subject to the completion of the necessary amendments to the relevant United Kingdom legislation. The legislation foreshadowed in the Memorandum is The Hong Kong Act 1985 and The Hong Kong (British Nationality) Order 1986. Acquisition of the new status of BN (0) will be determined under that legislation and not under the Memorandum. That said, it is obviously not desirable to have an inconsistency between our international declaration of intention and the domestic law enacted to give effect to that intention.

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I do not think, therefore, it is really a question of saying which provision takes precedence over the other but of reconciling the two in a way which is consistent. The first sentence of paragraph (a) of the UK Memorandum appears to produce no conflict with the 1986 Order. It provides, in part, that all Hong Kong BDTCs will, with effect from 1 July 1997, be eligible to retain an appropriate status which will entitle them to continue to use passports issued by the Government of the United Kingdom. In the context of the paragraph as whole, therefore, I think it is possible to interpret the Memorandum not as saying that the holding of a BN (0) passport itself confers the status of BN (0) but that it is the registration of a BN (0) as such which does, from which flows the entitlement to hold a passport. Such an interpretation would be consistent with the general principle that a passport itself does not confer a status but is merely prima facie evidence of it.

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The matter is complicated in the case of BN (0)s because the procedure chosen for application to register as such takes the form of a joint registration and passport application. This is because BN (0)s are not issued with a registration certificate; the BN (0) passport is the only document issued and the only evidence of status. Because of the dual nature of the application it will not be possible, as far as I see it, for a person who is not registered as a BN (0) to be issued with a BN (0) passport. As you know, there have been cases where a person has been issued with British passport facilities as a result of a mistaken determination of their nationality status. The courts have held that that mistake in itself does not confer nationality unless, in limited circumstances, an estoppel operates to prevent the Government from denying its accuracy. In the case of BN (0)s this cannot arise as the fact of registration is, I assume, irrebuttable proof of status. that extent the holding of or inclusion in a BN (0) passport will be tantamount to proof of BN (0) status; the acquisition of the status and the passport are, in practice, one and the same thing. It is also important to remember that a person who is a BN (0) possesses not so much a nationality as a qualification for UK travel facilities.

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The next question is whether a British Citizen's passport with an endorsement to the effect that its holder is also a BN (0) qualifies as a passport "appropriate to that status" under section 4(2) of the 1986 Order. In my view it does. would also seem to qualify as "such a British passport" issued by the Government of the United Kingdom to which a person will