British nationality law and Hong Kong
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BN(O)
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/* Lord Goldsmith's Citizenship Review in 2008 */
{{for|technical aspects and visa-free access of a British National (Overseas) passport|British passport}}
{{British subjects}}
'''British nationality law''' as it pertains to '''[[Hong Kong]]''' has been a unique situation ever since Hong Kong was created a [[British colony]] in [[1842]]. With its beginning as a trading port to today's cosmopolitan international financial centre, the territory has attracted [[refugees]], [[immigrants]] and [[expatriates]] alike searching for a new life.
Citizenship matters were further complicated by the fact that [[British nationality law]] had always considered those born in Hong Kong were [[United Kingdom|British]] subjects, while the [[People's Republic of China]]—since its creation in [[1949]]—has never recognised any type of British citizenship for those of Chinese descent. First, recognising British citizenships would imply the PRC and her predecessor [[Qing]] China validating the series of [[Unequal Treaties]] that ceded Hong Kong. Secondly, the [[Nationality Law of the People's Republic of China|PRC nationality law]] adopted in [[1980]] does not allow dual nationality.
With the sovereignty transfer to the PRC imminent in [[1997]], both the British and the Chinese governments had involved over a decade of negotiations trying to bring about a smooth transition in the government, the economy, and of course, determining citizenship status for almost 6 million people -- of Chinese descent and/or otherwise.
==Early colonial era==
[[English common law]] has the rationale of natural-born citizenship, that which was acquired because British-born subjects would have a "natural allegiance" to the crown as a "debt of gratitude" to the crown for protecting them through infancy. In the spirit of [[jus soli]], natural-born subjects were born within the dominion of the crown which included self-governing dominions and colonies. As the dominion of the crown expanded, [[British subject]]s included not only persons within the United Kingdom but also those throughout the British Empire. However, the reverse reasoning would mean that no [[naturalisation]] was possible until the introduction of Naturalisation Acts of [[1844]], [[1847]] and [[1870]].
By this definition, anyone born in Hong Kong since [[1842]] was a British subject. That of course, depended where and when one was born in the territory because the British jurisdiction of Hong Kong did not expand to its current size until [[1898]] with the leasing of [[New Territories]].
The ''Naturalisation of Aliens Act 1847'' validated what had been covered in the ''Naturalisation Act 1844'' (applied only to [[United Kingdom]]) to the rest of the dominions and colonies. The Act made provisions for naturalisation as well as allowing acquiring British subject status by marriage between a foreign woman and a British subject man.
===British Nationality and Status of Aliens Act 1914===
''British Nationality and Status of Aliens Act 1914'' came into force on [[1 January]] [[1915]] codified for the first time the law relating to British nationality. No major change was introduced but it set in law how people associated with Hong Kong -- as part of "His Majesty's dominions" -- would acquire British subject status.
===Japanese occupation===
During [[World War II]] between [[25 December]], [[1941]] and [[15 August]], [[1945]], Hong Kong came under [[Japanese occupation of Hong Kong|Japanese occupation]].
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The occupation did not affect the British nationality of any person born there during the occupation, except for those whose father (where married to the mother) was an "enemy alien".
After the war, ''British Nationality Act 1948'' made provision to define the nationality status for those born in occupied territories. The Act stated that British citizenship is obtained by birth except for individuals whose father was an enemy alien and that the birth occurred in a place under enemy occupation.
===British Nationality Act 1948===
The [[Commonwealth of Nations]] heads of government decided in [[1948]] to embark on a major change in the law of nationality throughout the Commonwealth. It was decided at the conference that the [[United Kingdom]] and the self-governing [[dominions]] would each adopt separate national citizenships, but retain the common imperial status of British subject. ''British Nationality Act 1948'' provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of all those British subjects who had a close relationship (either through birth or descent) with the United Kingdom and its remaining colonies. The Act also provided that British subjects could be known by the alternative title [[Commonwealth citizen]].
The Act came into force on [[1 January]] [[1949]] and stipulated that anyone born in "United Kingdom or a colony" ie: Hong Kong on or after that date was a CUKC. Those who were British Subjects on [[31 December]] [[1948]] was entitled to acquire CUKC by declaration. The deadline for this was originally [[31 December]] [[1949]], but was extended to [[31 December]] [[1962]] by the ''British Nationality Act 1958''.
British Nationality Acts were passed in [[1958]], [[1964]] and [[1965]], which mainly fine tuned special provisions about CUKC acquisition.
===Commonwealth Immigrants Acts===
Until the ''[http://www.britishcitizen.info/CIA1962.pdf Commonwealth Immigrants Act 1962]'', all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonisation of the 1960s, the United Kingdom passed the ''Commonwealth Immigrants Act 1962'' and ''[http://www.britishcitizen.info/CIA1968.pdf Commonwealth Immigrants Act 1968]'' tightened immigration control for CUKCs into the United Kingdom and Islands (the UK, the Channel Islands and the Isle of Man).
Finally in the ''[http://www.britishcitizen.info/IA1971.pdf Immigration Act 1971]'', the concept of patriality or [[right of abode]] was created. CUKCs and other Commonwealth citizens had the right of abode in the UK only if they, their husband (if female), their parents or their grandparents were connected to the United Kingdom and Islands. This placed the UK in the rare position of denying some of its nationals entry into their country of nationality. However, the concept of patriality was recognised as only a temporary solution to halt sudden wave of migration. The British government embarked on a major reform of the law, resulting in the ''British Nationality Act 1981''.
These Acts shaped the already increasing restrictive immigration policies into the UK for Hong Kong residents even before the [[Sino-British Joint Declaration]] of [[1984]].
=== British Nationality Act 1981===
''[[British Nationality Act 1981]]'' was monumental in not only creating new categories of British citizenship, but also effectively renaming British colonial territories. The Act implied that all British colonial possessions were to be known as British Dependent Territories.
The Act abolished the status of CUKC, and replaced it with three new categories of citizenship on [[1 January]] [[1983]], namely:
* British citizenship,
* British Dependent Territories citizenship (BDTC), and
* British Overseas citizenship (BOC).
The law implied that those who have CUKC in connection with Hong Kong or those born in Hong Kong in or after [[1983]] has BDTC. The law also stated that citizens by descent could not automatically pass on British nationality to a child born outside the United Kingdom or its Dependent Territories.
==Post Sino-British Joint Declaration==
[[Image:Flag of the United Kingdom.svg|right|100px]][[Image:Flag of Hong Kong 1959.svg|right|100px]][[Image:Flag of the People's Republic of China.svg|right|100px]]
Negotiation concerning the future of Hong Kong had started in the late 1970s between Britain and the PRC as the lease on New Territories would end in about 20 years. With the signing of the [[Sino-British Joint Declaration]] on [[19 December]] [[1984]], the future of Hong Kong was set, when the PRC would assume sovereignty of the entire ceded territory of Hong Kong on [[1 July]] [[1997]].
The Declaration set in motion a series of negotiations between the British and Chinese governments to ensure a smooth transition. Nevertheless, the future of Hong Kong under [[People's Republic of China|PRC]] rule had continued to create uncertainties for Hong Kong residents. It also prompted a series of British Nationality Acts passed specifically for Hong Kong starting in [[1985]] to control what would be significant migration from the territory to the United Kingdom and elsewhere as well as restoring confidence in people.
There were some 3.5 million residents of Hong Kong with BDTC status by virtue of their connection with Hong Kong. Another 2 million were believed to have been eligible to apply to become BDTCs. Upon handover, they would have lost this status and became solely [[Chinese nationality law|PRC citizens]]. At the time, Hong Kong was the largest of the remaining British dependent territories with over 5 million inhabitants, many of whom were well-educated, financially resourceful, and with family connections all over the world. This created possibilities that allowed hundreds of thousands of people to emigrate in the 80s and 90s even with the new British nationality law restrictions.
It is worth noting that the PRC had and still considers that anyone of Chinese descent born in Hong Kong has always been solely a Chinese citizen.
===Hong Kong Act 1985===
{{Demographics of Hong Kong}}
The ''[http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Foreigners_and_citizens/Nationality/Documents/National_legislation/UK%20Hong%20Kong%20Act%201985.pdf Hong Kong Act 1985]'' created an additional category of [[British nationality law|British nationality]] known as ''British National (Overseas)'' or BN(O). This new category was available to Hong Kong BDTCs to apply. Any Hong Kong BDTC who wished to do so was able to acquire the (non-transmissible) status of British National (Overseas).
The 1985 Act was brought into effect by the [http://www.britishcitizen.info/HKBNO1986.pdf Hong Kong (British Nationality) Order 1986]. Article 4(1) of the Order provided that on and after [[1 July]] [[1987]], there would be a new form of British nationality, the holders of which would be known as British Nationals (Overseas). Article 4(2) of the Order provided that adults and minors who had a connection to Hong Kong were entitled to make an application to become British Nationals (Overseas) by ''registration''.
Becoming a British National (Overseas) was therefore not an automatic nor an involuntary process and indeed many eligible people who had the requisite connection with Hong Kong never applied to become British Nationals (Overseas). Acquisition of the new status had to be voluntary and therefore a conscious act. To make it involuntary or automatic would have been contrary to the assurances given to the PRC government which led to the words "eligible to" being used in paragraph (a) of the [http://www.info.gov.hk/trans/jd/jd6.htm United Kingdom Memorandum] to the [[Sino-British Joint Declaration]]. Any person who failed to register as a British Nationals (Overseas) by [[1 July]] [[1997]] and would thereby be rendered stateless, automatically became a [[British Overseas citizen]] under [http://www.britishcitizen.info/StatelessReductionProvisions.pdf article 6(1) of the Hong Kong (British Nationality) Order 1986].
No person could become a British National (Overseas) automatically by being born in Hong Kong, by descent or by any involuntary means. A person was required to make an application on the prescribed form to the British authorities, and applicants only became a British National (Overseas) when their application was approved and duly registered under the authority of the [[Home Secretary]]. The deadline for applications passed in 1997.
British Nationals (Overseas) are [[Commonwealth citizen]]s so they enjoy most civic rights in the [[United Kingdom]]. They are also eligible for a free-of-charge Residence Permit if they wish to study in the UK [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1065717801153]. Police registration (of £34) is not required for BN(O)s residing in the UK (but it is required for HKSAR passport and PRC passport holders). [http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter10/section1.pdf?view=Binary], [http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter10annexes/section1/annexa.pdf?view=Binary] But BN(O)s are not full British citizens or [[European citizen]]s and they do not have the right of abode in the United Kingdom. BN(O) differs from other forms of non-citizen British nationalities (such as [[British subject]] and [[British protected person]]) in that it is not lost automatically when the holder becomes a citizen of another country.
It should be noted that the PRC Government does not recognise British National (Overseas) or British citizen passports issued to former Hong Kong British Dependent Territories citizens that are [[nationalities of China|ethnically Chinese]] (or possess Chinese nationality), who must obtain a [[Home Return Permit]] to enter mainland China. The British Government has already indicated that BN(O)s of ethnic Chinese origin cannot enjoy UK consular protection in [[Hong Kong]], [[Macau]] and [[Mainland China]] [http://www.gnn.gov.uk/content/detail.asp?NewsAreaID=2&ReleaseID=174346]. However, the UK Government was asked to [[Home Visit Permit#Ching Cheong|provide consular assistance]] to [[Ching Cheong]], a Hong Kong journalist who is detained in the mainland China. Ching Cheong holds a BN(O) passport. However, both British citizen and BN(O) passport holders (even if they hold Chinese citizenship) do not qualify for the [[Chief Executive of Hong Kong|Chief Executive]] election of the Hong Kong SAR [http://www.dab.org.hk/en/main.jsp?content=article-content.jsp&categoryId=1205&articleId=168]. According to the Chinese newspaper article (特首持BNO可變英國公民?) published on the ''[[Hong Kong Economic Times]]'' (Date: 23/5/2001, Page: A31), the HKSAR Government placed this restriction because there were concerns that BN(O)s may be given full citizenship (or the right of abode in the UK) eventually.
The [[Republic of China|Republic of China (Taiwan)]] only fully recognises British citizens but does not recognise British Nationals (Overseas) (who are ethnic Chinese). BN(O)s (and [[HKSAR passport]] holders) need a landing visa specific for them to enter [[Taiwan]] but British Citizens are eligible for the full visa free access programme. (See [[Entry Permit of HK and Macao Residents (Republic of China on Taiwan)]]) Taiwan also does not fully recognise the British nationality of naturalised British citizens who were born in China (the PRC). They have additional hurdles to clear under Taiwanese law before being granted residence visas for Taiwan [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029390590&a=KCountryAdvice&aid=1013618386847]
British Nationals (Overseas) are not eligible to participate in the [[Visa Waiver Program]] of the United States. The adjusted refusal rate of US B-visas (B1, B1/B2, B2) of BN(O) passport holders in the fiscal year 2006 was 3.1% [http://travel.state.gov/pdf/CombinedRefusalRate.pdf], which was slightly higher than 3% requirement for the programme. The refusal rate of [[HKSAR passport]] was 4.2% in that year. In 2007, the refusal rate of BN(O)s was 2.4%, which is lower than the 3% requirement. However, the refusal rate for HKSAR is 3.4%, which was above the 3% requirement.[http://travel.state.gov/pdf/FY07.pdf] Currently, the United States confers "Hong Kong reciprocity" for BN(O) passport holders (which is the same as the [[HKSAR passport]]). The "United Kingdom reciprocity" is not applicable for BN(O)s. However, for statistical reasons, BN(O) has a different country code HOKO in US visas, while the HKSAR passport and the HKSAR [[Document of Identity]] have the country code HNK. BN(O)s can enter Guam without a visa while HKSAR passport holders require one. [http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3699.html],[http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3579.html], [http://hongkong.usconsulate.gov/niv_guam.html]. It is interesting to note that, for student visa applications (F, M and J) ([[SEVIS]]), BN(O) passport holders must fill in the nationality field as "Hong Kong" or "China", while British citizens must fill in the nationality field as "United Kingdom".[http://hongkong.usconsulate.gov/niv_sevis_nationality_and_country_of_birth_codes.html]
Since April 1, 2004, BN(O)s (and HKSAR passport holders) are eligible for visa-free access into Japan. [http://www.info.gov.hk/gia/general/brandhk/0323161.htm] [http://www.mofa.go.jp/region/asia-paci/china/visa0402.html]
This passport is eligible for [[Electronic Travel Authority]] of Australia, with the restriction that BN(O)s cannot apply online.
Since early 2007, BN(O)s now also eligible for [[European Union visa lists|full visa-free visit to the European Union]]. When [[Jack Straw]] was [[Foreign Secretary]] of the UK, he wrote to the European Commission and the EU arguing that British Nationals (Overseas) passport holders should be granted visa free access to the Schengen area. The European Union refuses to grant [[British Overseas Territories Citizen]]s without right of abode in the UK, [[British Overseas citizen]]s, [[British protected person]]s, [[British subject]]s visa-free access based on the ground that these people only have a "tenuous" link with the United Kingdom, as they have no right of abode in the UK and subject to UK immigration controls. However, even BN(O)s currently have no right of abode in the UK though not officially stated that they are subjected to UK immigration controls {{Fact|date=May 2008}}, they are now eligible for visa-free access to the Schengen area. [http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=bn%20o&ALL=&ANY=&PHRASE=%22BN%28O%29%22&CATEGORIES=&SIMPLE=BN%28O%29&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=muscat_highlighter_first_match&URL=/pa/cm200607/cmselect/cmfaff/501/501we03.htm#muscat_highlighter_first_match]
[http://www.publications.parliament.uk/pa/cm200506/cmselect/cmeuleg/34-xxxvii/34x22.htm]
[http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/memo/166/uceu2002.htm]
However, HKSAR passport holder started to enjoy this visa-free access in 2001 [http://www.info.gov.hk/gia/general/200104/06/0406208.htm], which contributed the decline of BN(O) passport.
Besides the USA, a small number of countries offer visa-free access for British citizens but they refuse to extend this arrangement to British National (Overseas). Examples include [[Ukraine]], [[Kyrgyzstan]], [[Lebanon]] etc. It is interesting to note that some countries (e.g. [[Rwanda]], [[Qatar]], [[UAE]] etc.) accepts BC and HKSAR passports for visa-free travel, but BN(O)s need a visa.
Some countries offer full visa-free access for [[HKSAR passport]] holders but BN(O)s and BCs require a pre-arrival visa (or a landing visa). Examples include [[Indonesia]], [[Turkey]], [[Egypt]].
Some countries offer visa-free access for BN(O) and BC passports but not the HKSAR passport. Examples include [[Guam]], [[Costa Rica]], [[Brazil]] etc.
See the article [[British passport]] for a full-list of visa free access countries of a BN(O) passport.
The British Consulate General in Hong Kong is responsible to maintain the database of BN(O) passport holders. This database can be only accessed by names. The data were collected by the colonial [[Immigration Department (Hong Kong)|Immigration Department]] before the handover in 1997. [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60606w01.htm]
The total number of British National (Overseas) (BN(O)) passports issued between April 1997 and the end of 2006 was 794,457, including renewals of full and/or lost passports. As on May 2007, it is estimated that approximately 2.6 million BN(O)s in Hong Kong do not hold a valid passport, as the total number of BN(O)s is 3.4 million. [http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semsimple&STEMMER=en&WORDS=bn%20o&ALL=&ANY=&PHRASE=%22BN%28O%29%22&CATEGORIES=&SIMPLE=BN%28O%29&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=70322w0001.htm_spmin0&URL=/pa/ld200607/ldhansrd/text/70322w0001.htm#70322w0001.htm_spmin0]
Around 13,000 people renewed BN(O) passports in 2007. (港人續領BNO護照大減九成, Page A10, 18/3/2007, [[Hong Kong Daily News]]) The CEO of [[Wing On Travel]] (永安旅遊) said that 95% of its customers used [[HKSAR passport]] and only 5% used BN(O) and other foreign passports.
However, according to the newspaper article in Chinese (人心尚未回歸國人仍需努力) by [[Leung Chun Ying]] published on ''[[Mingpao]]'' on 1 June 2007, most university graduates from Hong Kong do state their nationality as "British" or "British National (Overseas)" in their résumés. [[Leung Chun Ying]] is a pro-Beijing politician in Hong Kong.
For more information about the nationality issues of Hong Kong people, please refer to the article on [[Politics of Hong Kong#Nationality and citizenship|Hong Kong Politics]].
See also: [[British consular protection enjoyed by BN(O) passport holders outside the PRC and the UK]]
{{History of Hong Kong}}
===British Nationality (Hong Kong) Act 1990===
After the [[Tiananmen Square protests of 1989]], many people in Hong Kong began to fear for their future post-1997. Emigration was rampant and a brain-drain was beginning to affect the economy of Hong Kong. To stem the drain, people urged the British Government to grant full British citizenship to all Hong Kong BDTCs — but this request was never accepted. However, in view of Britain's special obligation to Hong Kong as the one dependent territory whose people were unable to exercise the fundamental right of self-determination, it was considered necessary to devise a [[British Nationality Selection Scheme]] to enable some of the population to obtain British citizenship to maintain confidence in Hong Kong and to counteract the effects of the emigration of many of its most talented residents. The United Kingdom made provision to grant citizenship to 50,000 families whose presence was important to the future of Hong Kong under the [http://www.hmso.gov.uk/acts/acts1990/Ukpga_19900034_en_1.htm British Nationality Act (Hong Kong) 1990]. Under the Act, the Home Secretary was required to register any person recommended by the [[Governor of Hong Kong]] (as well as the applicant's spouse and minor children) as a British citizen. Any person who was registered under the Act automatically ceased to be a British Dependent Territories citizen (and also ceased to be a British National (Overseas), if they had that status) upon registration as a British citizen. No person could be registered under the Act after [[30 June]] [[1997]].
===Hong Kong (War Wives and Widows) Act 1996===
Women who have received assurance from the Secretary of State that they would be eligible for settlement in the United Kingdom on the basis of their husband's war service in the defence of Hong Kong may be registered as British citizens if:
* she is resident in Hong Kong; and
* she has not remarried
There is no requirement for the woman to hold (or have held) any form of British nationality.
Women registered as British citizens under this Act acquire British citizenship ''otherwise than by descent''
* [http://www.opsi.gov.uk/acts/acts1996/1996041.htm Hong Kong (War Wives and Widows) Act 1996]
===British Nationality (Hong Kong) Act 1997===
Another special group of solely Hong Kong British nationals were the non-Chinese ethnic minorities of Hong Kong. They are primarily people of Nepalese, [[India]]n & [[Pakistani people|Pakistani]] [[kinship and descent|descent]]. After the [[transfer of the sovereignty of Hong Kong|handover]] to the People's Republic of China, [http://www.immd.gov.hk/ehtml/chnnationality_2.htm they would not be accepted as inherently being citizens of the PRC], as they were not of Chinese descent or Chinese race. They would be left effectively [[stateless person|stateless]] — they would have British nationality but no [[right of abode]] in the UK, nor in Hong Kong, but no claim to [[Chinese nationality law|PRC nationality]]. [[Jack Straw (politician)|Jack Straw]], then the Shadow Home Secretary said [http://www.prnewswire.co.uk/cgi/news/release?id=48962 in a letter] to the then Home Secretary [[Michael Howard]] dated [[30 January]] [[1997]] that "common sense and common humanity demand that we give these people full British citizenship. The limbo in which they will find themselves in July arises directly from the agreements which Britain made with China". He further stated that a claim that British National (Overseas) status amounts to British nationality "is pure sophistry". ''[[The Economist]]'' also criticised that "the failure to offer citizenship to most of Hong Kong’s residents was shameful", and "it was the height of cynicism to hand 6m people over to a regime of proven brutality without allowing them any means to move elsewhere." The article also stated that the real reason that the new Labour government still refused to give full British citizenship to other British Dependent Territories Citizens in around 1997 because the UK waited until Hong Kong had been disposed of “would be seen as highly cynical”, as [[Elizabeth Symons, Baroness Symons of Vernham Dean|Baroness Symons]], a [[Foreign Office]] minister, has conceded. ("Britain’s colonial obligations", 3 July 1997, ''[[The Economist]]'')
[http://www.journalism.sfsu.edu/www/pubs/prism/nov95/03.html The ethnic minorities petitioned to be granted full British citizenship.] In response to expressions of concern in [[Parliament of the United Kingdom|both Houses of Parliament]], representations by the [[Hong Kong Legislative Council]], the Governor of Hong Kong [[Chris Patten]], the Foreign Secretary [[Malcolm Rifkind]], the [http://www.parliament.uk/parliamentary_committees/foreign_affairs_committee.cfm House of Commons Select Committee on Foreign Affairs], two former governors of Hong Kong and a former Minister with responsibility for Hong Kong, the Prime Minister [[John Major]] discussed the issue with Home Secretary Howard during the week of [[27 January]] to [[31 January]] [[1997]]. Howard appeared to be in a minority in the Cabinet in strongly resisting the grant of British citizenship to the group, and [[Prime Minister]] Major suggested that the Cabinet might need to resolve the issue. Michael Howard agreed to consider the matter over the weekend. On [[4 February]] [[1997]], the [http://www.publications.parliament.uk/pa/cm199697/cmhansrd/vo970204/text/70204w07.htm#70204w07.html_sbhd7 Home Secretary announced in Parliament] that provision would be made to grant full British citizenship (with the right of abode in the UK) to the solely British ethnic minorities of Hong Kong. It was acknowledged that their [http://www.publications.parliament.uk/pa/ld199697/ldhansrd/vo970204/text/70204w02.htm#70204w02_sbhd3 nationality status would be uncertain] after [[30 June]] [[1997]]. The subsequently enacted [http://www.hmso.gov.uk/acts/acts1997/1997020.htm British Nationality (Hong Kong) Act 1997] gives them an entitlement to acquire full British citizenship by making an application to register for that status after [[1 July]] [[1997]].
=== Residual solely British Nationals in HK===
A small group of Hong Kong ethnic minorities BN(O) holders (of Nepali, Pakistani and other descent) are still solely British Nationals (Overseas) after the handover. They are often regarded ''[[de facto]]'' [[stateless]]. These people do not satisfy the requirements of the [http://www.opsi.gov.uk/acts/acts1997/ukpga_19970020_en_1 British Nationality (Hong Kong) Act 1997] due to one of the reasons below:
1) (s)he was not ordinarily resident in Hong Kong the before ''relevant date'' (4 February 1997); or
2) (s)he was under 18 / 21 year of age and were dual national through their parents before the ''relevant date''.
Their second nationality which they got through their parents has been ceased automatically when they turn 18/21 year of age, and now they are solely British Nationals without any full citizenship.
However, even they do not hold any full citizenship nor the right of abode in the UK, they still have the [[right of abode]] or [[right to land]] in Hong Kong. Their [[British passport]]s are still renewable and valid for travel. However, their visa-free access to certain countries may be adversely affected (e.g. Taiwan (not Chinese), Turkey (without HK right of abode)). Unlike ethnic Chinese BN(O)s, they enjoy British consular protection in Hong Kong, Macau and mainland China.
[[Lord Avebury]] has spoken on behalf of this small group in [[House of Lords]]:
''"In enacting this amendment, we will remedy the limbo status of probably the last remaining group of solely British nationals who have no other nationality or citizenship, who have not recently and deliberately given up another nationality or citizenship and yet who do not come under the provisions of Section 4B of the 1981 Act despite having no entitlement to acquire the citizenship of any other country. The group in question are solely British nationals overseas who were not ordinarily resident(or under 21 years of age before relevant date) in Hong Kong on 4 February 1997 and can never satisfy the requirements of the 1997 Act. Consistent with the policy that all otherwise stateless British nationals without the right of abode in the United Kingdom should have the entitlement to register as British citizens, this small group of people should be entitled to do so, too. They hold only British passports, their sole identity is British and yet they do not have the right to reside in any British territory''.
''We have a strong obligation to this group of people under the UN Convention on the Reduction of Statelessness, Article 10.1 of which says:''
''"Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavours to secure that any such treaty made by it with a State which is not a Party to this Convention includes such provisions".''
''The 1984 Sino-British joint declaration on Hong Kong made specific provision for the indigenous Chinese population of Hong Kong to be recognised as Chinese citizens. Despite our convention obligations, it made no provision for the non-Chinese, solely British ethnic minorities of Hong Kong to acquire proper citizenship. That was made clear by the current Foreign Secretary, [[Jack Straw]], who, on 30 January 1997, said that, "common sense and common humanity demand that we give these people full British citizenship. The limbo in which they will find themselves in July arises directly from the agreements which Britain made with China"''.
==After the Handover==
[[Image:Hong Kong handover.jpg|right|thumb|350px|Moments after midnight 1 July, 1997 at the [[Hong Kong handover ceremony|Handover Ceremony]] when Hong Kong BDTCs status ceased to exist. Most people with Chinese descent have automatically become solely Chinese nationals.]]
[[Chinese nationality law]] has applied in Hong Kong since the handover on [[1 July]] [[1997]]. Hong Kong BDTC status had ceased to exist and could not be retained. The PRC nationality law was adopted for Hong Kong at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress on [[15 May]] [[1996]], a year prior to the Hong Kong handover and came into effect on [[1 July]] [[1997]]. The explanations concerning the implementation of the nationality of Hong Kong citizens is that Hong Kong citizens of Chinese descent are Chinese nationals whether or not they have acquired other foreign citizenship(s). In other words, Hong Kong residents of Chinese nationality do not lose their citizenship upon acquiring foreign one(s) in contrast to Article 9 of the law.
Officially, the PRC continues to recognise only Chinese citizenship for its Chinese nationals. Any type of the British and foreign citizenships owned by Chinese nationals are not recognised by the Chinese government and no foreign consular service would be enjoyed by Chinese nationals in Chinese territory. That being said, many Chinese nationals have gained entry into China holding foreign travel documents with proper entry visas without encountering any problem or having to denounce one nationality or the other.{{Fact|date=August 2007}}
Dual nationality does not constitute a concern for the British government.
===Nationality, Immigration and Asylum Act 2002===
In light of the passing of ''[[British Overseas Territories Act 2002]]'', which made provision to substitute the wording of "British Dependent Territories" with "[[British Overseas Territories]]" in ''British Nationality Act 1981'' among other new provisions, further clarification was made even though this Act did not even apply to Hong Kong. Section 14 of the subsequent ''Nationality, Immigration and Asylum Act 2002'', stated specifically that a person may not be registered as a [[British Overseas Territories citizen]] by virtue of a connection with Hong Kong.
===Non-Chinese ethnic minorities===
In February 2006, British authorities announced that six hundred [http://www.publications.parliament.uk/pa/ld200506/ldlwa/060228wa1.pdf British citizenship applications of ethnic minority children of Indian descent from Hong Kong were wrongly refused]. The applications dated from the period July 1997 onwards. Where the applicant in such cases confirms that he or she still wishes to receive British citizenship the decision will be reconsidered on request. No additional fee will be payable by the applicant in such cases. A [http://www.britishcitizen.info/ReconsiderationRequest.pdf template to request reconsideration] can be downloaded from [http://www.britishcitizen.info/ www.britishcitizen.info].
Recent changes to India's Citizenship Act 1955 (see [[Indian nationality law]]) provide that Indian citizenship by descent can no longer be acquired automatically at the time of birth. This amendment will also allow some children of Indian origin born in Hong Kong after [[3 December]] [[2004]] who have a British National (Overseas) or British Overseas citizen parent to [http://www.britishcitizen.info/ automatically acquire British Overseas citizenship] at birth (see [http://www.britishcitizen.info/ www.britishcitizen.info]) under the provisions for reducing statelessness in [http://www.britishcitizen.info/StatelessReductionProvisions.pdf article 6(2) or 6(3) of the Hong Kong (British Nationality) Order 1986]. If they have acquired no other nationality after birth, they will be entitled to [http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/41220w04.htm#column_WA123 register for full British citizenship] with right of abode in the UK.
Recent clarification of [[Nepal citizenship law]] has meant a number of persons born in Hong Kong who failed to renounce their British nationality before the age of 21 and were previously thought to be citizens of Nepal are in fact solely British. The British Government has recently accepted that [http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870243763 certain Nepalese passport holders born in Hong Kong before 30 June 1976 are British Overseas citizens], and can register for full British citizenship (with right of abode in the UK) if they wish to do so. To obtain British citizenship they must apply to register for British citizenship using Form EM, or Form B(OS) depending on the circumstances of their case.
===Lord Goldsmith's Citizenship Review in 2008===
[[Lord Goldsmith]] discussed the BN(O) issue in his Citizenship Review in 2008. <ref> "[http://www.justice.gov.uk/docs/citizenship-report-full.pdf Lord Goldsmith QC Citizenship Review -- ''Citizenship: Our Common Bond'']" </ref>. He admitted the BN(O) status is an "anomalous" in the history of British Nationality Law. He does not set any pre-assured stance on the issue whether the BN(O) status should be removed or to be preserved. The original text:
''"Nonetheless to remove this status without putting something significant in its place would be seen as the British reneging on their promise to the people of Hong Kong. The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship. It is likely that many would not take this up as the prospects economic and fiscal of moving to the UK are not favourable to those well-established in Hong Kong. However, I am advised that this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong, an international treaty between the two countries; and that to secure Chinese agreement to vary the terms of that treaty would not be possible. On that basis, I see no alternative but to preserve this one anomalous category of citizenship."''
The above mainly remarks for Chinese descent BN(O) holders and Lord Goldsmith did not address the small group of ''de facto'' stateless British Nationals living in Hong Kong in the Citizenship Review study document.
Moreover, the Chinese newspaper [[Hong Kong Economic Times]] has cited e-mail replies of immigration authorities of Norway, Sweden, Iceland and Belgium. In their replies, they stated that BN(O) holders may enjoy the same rights as EEA/EU citizens in these countries. Some EU countries do not stamp BN(O) passports now upon entry. ("BN(O)又爭居英權?", Page C05, 13/3/2008, ''Hong Kong Economic Times'')
The article also cited part of the [[Lisbon Treaty]] regarding nationality: every national of an EU member state should be a national of the European Union. While there is a list of excluded areas, Hong Kong is not included. A commentator of current affairs asserts that full UK citizenship rights will be granted to BN(O)s soon, from the literal reading of the treaty; nonetheless, a law professor and a British immigration lawyer, experienced in BN(O) immigration to the UK, disagree with the commentator.
In another newspaper article ("英擬重整國籍類別BN(O)不受惠", Page P07, 12/3/2008, ''[[Hong Kong Economic Journal]]''), it is reported that BN(O)s and [[British Overseas citizen]]s will not benefit from the citizenship review but this statement is yet to be verified.
==Travel documents used in Hong Kong:==
* [[Hong Kong SAR passport]]
* [[British Dependent Territories citizen Passport]]
* [[Hong Kong Certificate of Identity]]
* [[Document of Identity]]
* [[Hong Kong Re-entry Permit]]
* [[Home Return Permit]]
==See also==
{{ChineseText}}
*[[British nationality law]]
*[[British passport]]
*[[History of British nationality law]]
*[[HKSAR passport]]
*[[Chinese nationality law]]
*[[Indian nationality law]]
*[[Nepal citizenship law]]
*[[Commonwealth citizen]]
*[[Entry Permit of HK and Macao Residents (Republic of China on Taiwan)]]
*[[Right of abode issue, Hong Kong]]
==External links==
===Government documents===
*[http://www.justice.gov.uk/docs/citizenship-report-full.pdf Lord Goldsmith QC Citizenship Review ''Citizenship: Our Common Bond'']
*[http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870241398 British citizenship information for persons from Hong Kong of Indian origin]
*[http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1138870243763 British citizenship information for persons from Hong Kong of Nepalese origin]
*[http://www.publications.parliament.uk/pa/ld200506/ldlwa/060228wa1.pdf Home Office letter to Lord Avebury, confirming that more than 600 applications for British citizenship from Hong Kong were wrongly refused]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-23a.213.6&s=section%3Awrans+speaker%3A12876#g213.7 which persons born in Hong Kong before 1949 acquired British nationality]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-18a.173.0&s=section%3Awrans+speaker%3A12876#g173.1 which persons born in Hong Kong between 1949 and 1982 acquired British nationality]
*British government statement confirming [http://www.theyworkforyou.com/wrans/?id=2007-01-18a.173.3&s=section%3Awrans+speaker%3A12876#g173.4 which persons born in Hong Kong between 1983 and 1997 acquired British nationality]
*[http://www.gnn.gov.uk/content/detail.asp?NewsAreaID=2&ReleaseID=174346 SUPPORTING BRITISH NATIONALS ABROAD: A GUIDE TO CONSULAR ASSISTANCE]
*[http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3699.html Reciprocity Schedule (United Kingdom), United States]
*[http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3579.html Reciprocity Schedule (Hong Kong), United States]
*[http://www.youtube.com/watch?v=zEcwW0yuuwA BN(O) passport TV advertisement in 1994]
===Legislations===
*British Nationality Acts: [http://www.uniset.ca/naty/BNA1981revd.htm 1981], [http://www.uniset.ca/naty/BNA1965.htm 1965], [http://www.uniset.ca/naty/BNA1964.htm 1964], [http://www.uniset.ca/naty/BNA1958.htm 1958], [http://www.uniset.ca/naty/BNA1948.htm 1948], [http://www.uniset.ca/naty/BNA1772.htm 1772], [http://www.uniset.ca/naty/BNA1730.htm 1730]
*[http://www.britishcitizen.info/HKBNO1986.pdf Hong Kong (British Nationality) Order 1986]
*[http://www.britishcitizen.info/StatelessReductionProvisions.pdf Provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986]
===Newspapers/Commentaries===
*[http://www.hku.hk/hkcsp/ccex/ehkcss01/issue2_ar_ma_01.htm The Transition of Hong Kong People's Nationality after World War II by Michiko Ai]
*[http://www.dab.org.hk/en/main.jsp?content=article-content.jsp&categoryId=1205&articleId=168 Nationality of the Chief Executive of the SAR], [[Democratic Alliance for the Betterment of Hong Kong]]
*[http://appledaily.atnext.com/template/apple/art_main.cfm?iss_id=20070407&sec_id=4104&subsec_id=11867&art_id=6979745 數字話當年 450萬人持特區護照], ''[[Apple Daily]]''
*[http://paper.wenweipo.com/2007/04/20/PL0704200010.htm BNO逐漸走進香港歷史], ''[[Wen Wei Po]]''
*[http://www.mingpaosf.com/htm/News/20070601/HK-gfk1.htm BNO護照≠英籍], ''[[Mingpao]]''
*[http://www.ilpa.org.uk/submissions/Citizenship%20Review.doc SUBMISSION TO LORD GOLDSMITH FOR THE CITIZENSHIP REVIEW: THE DIFFERENT CATEGORIES OF BRITISH NATIONALITY, Immigration Law Practitioners' Association]
==References==
{{reflist}}
==Further readings==
*張勇、陳玉田:《香港居民的國籍問題》(出版社:三聯書店(香港)) (Chinese)
*《修改英國國籍法的深刻教訓》, [[Leung Chun Ying]], ''[[Mingpao]]'', 16 March 2007
*《人心尚未回歸國人仍需努力》, [[Leung Chun Ying]], ''[[Mingpao]]'', 1 June 2007
*''Britain’s colonial obligations'', ''[[The Economist]]'', July 3rd 1997
*''The colonies -- Leftovers'', ''[[The Economist]]'', July 3rd 1997
{{British nationality law}}
{{DEFAULTSORT:British nationality law and Hong Kong}}
[[Category:British nationality law]]
[[Category:Immigration to the United Kingdom|Nationality law]]
[[Category:International relations]]
[[Category:Foreign relations of Hong Kong]]
[[Category:History of Hong Kong]]
[[Category:International travel documents]]
[[Category:British rule in Hong Kong|Nationality law]]
[[Category:Hong Kong travel documents]]
[[Category:Anglo-Chinese relations]]
[[zh-yue:英國國籍法與香港]]
[[zh:英國國籍法與香港]]