TNAG-2970-FCO40-4249-Future-of-Hong-Kong-transfer-of-UK-related-records-from-Hong-1993 — Page 163

HKD A44/2

RECFE

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12 FEB 1993

OFF OFFICER

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"to Joninkelly.

From: Miss S Brooks

Legal Counsellor

11 February 1993

Date:

Cc:

R Wye, RAD

A C Stephens, MVD

C Hayward, NTCD

D Walton,

Assistant

Legal Adviser

12/2

Mrs Barnes Jones

HKD

4)

HONG KONG:

TRANSFER OF RECORDS

1. I refer to your minute of 27 January. You have asked me about the transfer from the Hong Kong Immigration Department to the future Consulate-General of all records concerning the issue of British visas. The question is whether there is any legal impediment to that transfer.

2. These are papers of the Hong Kong Government which would be transferred to HMG. Whether or not this can be done as a matter of Hong Kong law is a matter on which Hong Kong Government legal advisers are best able to advise. The main problem which might arise for HMG would be if the HKSAR Government or the PRC Government claimed the papers as belonging to the HKSAR Government. I am sure all this has been gone into in the past, but I have not seen any previous legal advice on the question of Hong Kong Government archives. The particular papers which are kept in the Immigration Department are, I understand, visit requests for the UK which are kept for 2 years and requests for settlement in the UK which are kept for 10 years.

I understand the records for the British Nationality Scheme are to be transferred to the UK.

3.

This issue raises questions about succession to archives. In this particular case these papers are not part of the archives of a state, but of a colony and they will not be the subject of succession but of transfer. The question is however whether they could legitimately be claimed by the successor government, the HKSAR Government post 1997. Special considerations apply to state archives (see Openheim's International Law, 9th Edition, Volume 1 edited by Sir Robert Jennings and Sir Arthur Watts at page 220). The special considerations applying to state archives arise "because of their frequent relevance to particular territory and its administration, while at the same time forming part of a historical record of the predecessor as well as the successor state, and the historical and cultural value of protecting their indivisibility.". At page 226 it is stated that effect

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