(Redirected from British National (Overseas))
'British nationality law' as it pertains to '
Hong Kong' has been a unique situation ever since it 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 to
expatriate alike searching for a new life and making a new living.
Citizenship matters were further complicated by the fact that
British nationality law had always considered those born in Hong Kong were
British subjects (to use the term loosely), 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
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 subjects 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 acquring 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.
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 ''
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 ''
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 ''
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 did it created new categories of British citizenship, but also effectively renamed 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
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
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
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
The ''
Hong Kong Act 1985'' created an additional category of
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
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
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
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 citizens 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
[1]. But BN(O)s are not full British citizens or
European citizens and they do not have the right of abode in the United Kingdom.
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
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 [2]. However, the UK Government was asked to
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 election of the Hong Kong SAR
[3].
The
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
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%
[4], which was slightly higher than 3% requirement for the programme. The refusal rate of
HKSAR passport was 4.2% in that year.
This passport is eligible for
Electronic Travel Authority of Australia, with the restriction that BN(O)s cannot apply online.
BN(O)s are now also eligible for
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.
[5]
[6]
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 before the handover in 1997.
[7]
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.
[8]
For more information about the nationality issues of Hong Kong people, please refer to the article on
Hong Kong Politics.
See also:
British consular protection enjoyed by BN(O) passport holders outside the PRC and the UK
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
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''
★
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,
Indian &
Pakistani descent. After the
handover to the People's Republic of China,
they would not be accepted as citizens of the PRC, as they were not of Chinese descent or Chinese race. They would be left effectively
stateless — they would have British nationality but no
right of abode in the UK, nor in Hong Kong, but no claim to
PRC nationality.
Jack Straw, then the Shadow Home Secretary said
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 ethnic minorities petitioned to be granted full British citizenship. In response to expressions of concern in
both Houses of Parliament, representations by the
Hong Kong Legislative Council, the Governor of Hong Kong
Chris Patten, the Foreign Secretary
Malcolm Rifkind, the
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
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
nationality status would be uncertain after
30 June 1997. The subsequently enacted
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.
After the Handover
Moments after midnight 1 July, 1997 at the
Handover Ceremony when Hong Kong BDTCs status ceased to exist. Most people with Chinese descent have automatically become solely Chinese nationals.
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.
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 subtitute 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
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
template to request reconsideration can be downloaded from
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
automatically acquire British Overseas citizenship at birth (see
www.britishcitizen.info) under the provisions for reducing statelessness in
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
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
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. All Nepalese are exempted and will be granted full British citizenship upon arrival at the UK soil.
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
★
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
★ British government statement confirming
which persons born in Hong Kong before 1949 acquired British nationality
★ British government statement confirming
which persons born in Hong Kong between 1949 and 1982 acquired British nationality
★ British government statement confirming
which persons born in Hong Kong between 1983 and 1997 acquired British nationality
★
Hong Kong (British Nationality) Order 1986
★
Provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986
★
British citizenship information for persons from Hong Kong of Indian origin
★
British citizenship information for persons from Hong Kong of Nepalese origin
★
Home Office letter to Lord Avebury, confirming that more than 600 applications for British citizenship from Hong Kong were wrongly refused
★ British Nationality Acts:
1981,
1965,
1964,
1958,
1948,
1772,
1730
★
The Transition of Hong Kong People's Nationality after World War II by Michiko Ai
★
SUPPORTING BRITISH NATIONALS ABROAD: A GUIDE TO CONSULAR ASSISTANCE
★
Nationality of the Chief Executive of the SAR,
Democratic Alliance for the Betterment of Hong Kong
★
數字話當年 450萬人持特區護照, ''
Apple Daily''
★
BNO逐漸走進香港歷史, ''
Wen Wei Po''
Other References
Book in Chinese: 張勇、陳玉田：《香港居民的國籍問題》（出版社：三聯書店（香港））
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