TNAG-2932-FCO40-4207-Future-of-Hong-Kong-nationality-British-National-(Overseas)-1993 — Page 62

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does not confer status but is merely evidence of it. To make the acquisition of BN (0) status dependent upon the holding of documentary proof of that status would be to introduce a concept unknown to our law which assimilated BN (0) status with the travel facilities themselves rather than a qualification for such facilities. It also raises some nice questions. Suppose, for example, that a person who registers and is issued with a BN (0) passport prior to 1 July 1997 subsequently loses that passport. According to this principle he would also lose his status as a BN (O) which could not be revived thereafter. Might a person who loses or has their BN (0) passport stolen after 1 July 1997 thereby be rendered stateless? Does the status transfer to whoever might be in possession of the passport at the time?

5. If that were the intention behind the 1986 Order then we did not make a very good job of giving effect to it. That Order clearly provides that holding a passport or being included in one appropriate to the status of BN (0) is an additional entitlement to registration as a BN (0) for those who qualify for such status. As I previously advised, it is because the procedure chosen for application to register is a joint registration and passport application that, in practice, it will not be possible for a person to have one without the In paragraph 6 of my previous minute I looked at the possibility of creating an estoppel on recognition of BN (0) status in favour of a person who had been issued with, but was not entitled to, a BN (0) passport and concluded that it would not be possible because of the inoperable nature of the application. The other side of this coin is that someone who fails to register by 1 July 1997 (or whatever phased dates may become relevant) will not be able to acquire a BN (0) passport despite the fact that they qualified to hold the status prior to that date.

6.

This may explain the content of the briefing prepared for the 1986 Order quoted in Mr Giles' letter where, in answer to the question "Can a person be registered as a BN (O) without acquiring a BN (0) passport?" the answer was "No. The new status and the passport that goes with it are inseparable." This statement is factually correct given the nature of the joint registration and passport application. But to conclude from that that a person who registers as a BN (0) but accidently leaves his passport on the bus on the way home might thereby be rendered stateless is not, in my view, tenable.

7. In view of this it might be necessary to approach the Chinese with a view to clarifying the intention expressed in the United Kingdom Memorandum. We could explain that it was never our intention to make acquisition of BN (0) status dependent on the holding of an equivalent passport but that in practice the two would go together. There is already a peg on which to hang the interpretation as given effect to in domestic law, namely the first sentence of paragraph (a) which provides 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 view of the ambiguity created by the following sentence it would seem appropriate to clarify the intention.

CODE 18-77