British Nationality Law: Britain’s Colonial Obligations to Hong Kong
The United Kingdom’s nationality law is inextricably linked to the failures of its imperial project. It is a history of active closure of itself from the peoples it colonised. Between 1949 and 1983, when the laws could have left the United Kingdom open, rights were instead narrowed, often to target people from specific countries from freely entering and living in the UK. By 1983, British nationality law and citizenship was fragmented and exclusionary, even to the citizens of its dependent territories such as Hong Kong. Ultimately, the British National (Overseas) status conferred to those with a connection to Hong Kong, at the end of the colonial domination, is a poor substitute for British citizenship.
Nationality Law and (De)colonisation
As part of its colonial endeavours in China, Britain signed the second Convention of Peking on 9 June 1898. The Qing Dynasty leased Hong Kong to Britain for 99 years, from 1 July 1898. This resulted in what the Home Office has called a ‘historic and enduring relationship with Hong Kong’.
Initially, any person born within His Majesty’s dominions and allegiance, which included Hong Kong, was a natural-born British subject. Offering some parity, under the British Nationality and Status of Aliens Act 1914, people born in the United Kingdom and Islands would also be British subjects.
On 1 January 1949, the British Nationality Act 1948 came into force. With it came a new concept of citizenship of the UK and Colonies. This was for British subjects who had a connection through birth or descent with the United Kingdom and its remaining colonies (Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon being excluded). At this point, there was still equality in citizenship; those born in the United Kingdom would also be citizens of the UK and Colonies.
Between 1949 and 1962, all Commonwealth citizens could enter the UK without restriction. However, this was short-lived. To stem the tide of post colonial citizens – citizens of the nations it had colonised – the Government introduced immigration controls through the Commonwealth Immigrants Act of 1962 and of 1968.
Subsequently, on 1 January 1973, our current tiered immigration system was introduced, separating those with a ‘patrial’ connection, i.e. those who had the right of abode, from those without it. To have a right of abode, citizens of the UK and Colonies were required to have a connection to the land of the United Kingdom, either themselves, or through their parents, or grandparents (and for some Commonwealth women through their husband). Those whose connection was too distant from British soil, did not have a right of abode in the United Kingdom.
The British Nationality Act 1981, which came into force on 1 January 1983 (just prior to the Sino-British Joint Declaration of 1984), defined what a ‘British citizen’ was, to the exclusion of most people of Hong Kong. Instead, they acquired a lesser form of citizenship: British Dependent Territories citizenship (BDTC) through their connection to Hong Kong, which was then a dependent territory. However, having a connection to a dependent territory was not equivalent in the eyes of the law to a connection to the United Kingdom. It did not confer a right of abode.
Therefore, before the treaty with China entered the picture, as with all other citizens in the colonies, the people of Hong Kong had their rights drastically diminished. They were third-tier citizens. Neither British otherwise than by descent, nor British by descent, they were citizens of the British Dependent Territories.
The Sino-British Joint Declaration
On 19 December 1984, the Joint Declaration of the Government of the United Kingdom and the Government of the People’s Republic of China on the Question of Hong Kong was signed in Peking.
The United Kingdom also signed a separate memorandum stating, “All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom”.
British National (Overseas) Status
In response to the acknowledgement that British sovereignty and jurisdiction over Hong Kong would end on 1 July 1997, the Hong Kong Act 1985 created a sui generis category of British Nationality law for those who had a connection to Hong Kong: British Nationality (Overseas), or BN(O).
The Hong Kong (British Nationality) Order 1986, which came into operation on 1st July 1987, provided a right to acquire BN(O) status by application: “Any person who is a British Dependent Territories citizen by virtue (wholly or partly) of his having a connection with Hong Kong and who, but for his having a connection with Hong Kong, would not be such a citizen shall be entitled, before 1st July 1997 (or before the end of 1997 if born in that year before that date), to be registered as a British National (Overseas) and to hold or be included in a passport appropriate to that status.” The Order also detailed the circumstances in which a person would be taken to have a connection with Hong Kong.
This means that no person born after 30 June 1997 is a British National (Overseas). Additionally, there were no provisions in law for BN(O) parents to pass that nationality by descent to their children. If a person was unaware of the scheme, or did not have the resources or ability to apply in-time, or if they were born after that date, the United Kingdom had (and under its current statement has) washed its hands of them. Currently, the Home Office and Government refer only to their ‘responsibilities towards British Nationals (Overseas)’. Only BN(O)s will be able to benefit from any proposed extension of rights. BDTCs who were eligible but who failed to apply for BN(O) status are excluded.
It is worth remembering that British National (Overseas) status still did not confer a right of abode.
BN(O) status was such a far cry from citizenship that certain BN(O)s in Hong Kong who were ethnic minorities, and would be left stateless following the handover (as they would not gain citizenship of the People’s Republic of China) were granted British citizenship under The British Nationality (Hong Kong) Act 1997. Ethnic minorities who lost their second nationality upon turning 18 or 21, and became de facto stateless, were also able to register as British under section 4B of the British Nationality Act 1981 (as amended by Borders, Citizenship and Immigration Act 2009). The Government did not consider that the memorandum barred them from granting citizenship in these circumstances.
British Citizenship for the Few
As a further classist move to retain the talented Hong Kong, it is noteworthy that the United Kingdom ran the British Nationality (Hong Kong) Selection Scheme, whereby the Governor of Hong Kong invited 50,000 permanent residents of Hong Kong who were members of certain classes to apply to register as a British citizen under the British Nationality (Hong Kong) Act 1990. Those who were eligible fell into four classes: managers and professionals, entrepreneurs, civil servants, and those in ‘sensitive service’.
The children of these selected persons were also able to register as British citizens by descent. However, most children of British citizens by descent are not automatically British citizens if they are born outside of the UK, including in Hong Kong. Therefore, the United Kingdom was able to exclude further generations from a right of abode.
What does the UK owe Hong Kong?
It is clear that the United Kingdom has a freighted and recent colonial history with Hong Kong. The relevant questions are what does the United Kingdom owe, and to whom does it owe it?
The first obligation is to uphold its responsibilities as the colonial power, using the powers inherent in domestic immigration and nationality law to rectify marginalisation and exclusion. The value of British citizenship is clear. As Paul Gilroy stated in Postcolonial Melancholia, ‘the variety and relative geopolitical stature of contending citizenships are to be evaluated in relation to the political orientation of the civilisation that issued and authorized them’. The imperial project was a success insofar as the people of Hong Kong value British citizenship and feel an affinity to the political orientation of this society.
As a corrective measure for those affected by its colonial legacy in Hong Kong, which has only been perpetuated by its current nationality laws, the United Kingdom should now provide them the very right from which they were excluded: the right to freely live, work and settle in the United Kingdom.
There has been a great deal of debate as to whether granting the full right of abode would breach the Sino-British Joint Declaration (or its accompanying memorandum). If there were to be such an infringement from a conferral of right of abode, or if it would place their Chinese citizenship at jeopardy, at a minimum they could be granted indefinite leave to enter or remain in the United Kingdom.
It is heartening to hear that the Government and Home Office’s response, as of 28 May 2020, is to consider opening rights for British Nationals (Overseas). The extent to which they can and ought to be opened should continue to be interrogated.
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