Dr Humphrey Lau, Settlement, Citizenship and Integration inquiry — Written evidence (SCI0530)
Rectifying Historical Injustices: Advocating Full British Citizenship and Fair Treatment for Hong Kong BN(O) Holders
Brief Introduction
I am currently residing in the UK, who have, for many years, been concerned with issues relating to British nationality for Hong Kong people.
Disclosure
This submission was drafted with assistance from generative AI for language refinement.
Summary
This evidence addresses the historical and ongoing unfairness in British nationality law towards Hong Kong British National (Overseas) (BN(O)) holders, particularly in light of the inquiry's questions on consistency with historical British policy, international comparisons, the citizenship process, and integration. BN(O) status reflects systemic discrimination rooted in post-1962 legislation, inconsistent with modern human rights standards and precedents. Recommendations include granting full British citizenship to rectify historical wrongs (as per Lord Goldsmith's 2008 review) and exempting BN(O) visa holders from the Life in the UK Test, English language requirements, and any income criteria to honour moral commitments.
1. Historical Discrimination in British Nationality Law Affecting Hong Kong BN(O) Holders
The tiered structure of British nationality, originating in the Commonwealth Immigrants Act 1962 and entrenched in the British Nationality Act 1981 (BNA 1981), created racially discriminatory effects in practice [1] [2] [3] [4]. Although the BNA 1981 avoided explicit ethnic criteria [2], its design granted full British citizenship to groups that were at least 96% white, while assigning inferior statuses to groups that were at least 98% non-white, with Hong Kong BN(O) holders comprising around 55% of those affected overseas (p.236) [3].
Hong Kong holders of Citizenship of the United Kingdom and Colonies (CUKC-HK), equivalent in status to those in the British Isles and comparable to the Windrush generation, were downgraded to British Dependent Territories Citizen (BDTC, now British Overseas Territories Citizen (BOTC)) status from 1 January 1983, stripping key CUKC rights. The British Nationality (Hong Kong) Order 1986 created BN(O) status (effective 1 July 1987), further reducing it to a third-class nationality with no right of abode anywhere and only limited consular protection.
The BNA 1981’s main aim was to remove full citizenship rights from CUKC-HK, the vast majority ethnically Chinese [4] [5] [6] [7] [8]. As reported by The Guardian in 2002, revoked full citizenship from dependent territories "in order to stop residents of Hong Kong moving to Britain prior to being handed over to China [after 1997]" [9] [also see 4 & 10], echoing 1960s–70s restrictions on East African UK passport holders [6]. Without controls, the UK risked ECHR challenges for denying entry to nationals, as in East African Asians v. United Kingdom, where the European Commission found similar racially discriminatory immigration rules constituted degrading treatment under Article 3 of the ECHR [4] [11]. (The ECHR was not extended to Hong Kong after UK EEC accession in 1973 [12], precluding such complaints there.) The British Overseas Territories Act 2002 granted full citizenship to remaining BOTCs but excluded Hong Kong, perpetuating the distinction. The Borders, Citizenship and Immigration Act 2009 further evidenced discrimination against BN(O) holders of Chinese ethnicity. It is clearly racism [13].
Protocol 4 to the European Convention on Human Rights (ECHR) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR) guarantee nationals' right to enter their country of nationality. The UK's denial of full entry rights to non-full British citizens contravenes standards observed by countries like France and Portugal [2] [14].
1.1 Further Evidence of Discriminatory Policy
European countries such as France granted full citizenship to people in all of their overseas territories in compliance with ECHR and ICCPR standards. Portugal likewise granted full citizenship to residents of all its overseas territories (e.g., Macau) in compliance with ECHR and ICCPR standards ahead of Macau's 1999 handover to China. Hong Kong residents received no such consultation on their post-1997 nationality.
Worse, declassified files reveal that in 1985, then Home Secretary Douglas Hurd and Foreign Secretary Geoffrey Howe pressured Portugal not to grant full citizenship to Macau residents, in order to prevent equivalent demands from Hong Kong BN(O) holders. Both Secretaries thus attempted to stop Hongkongers from flocking to Macau to see Portuguese nationality, thereby gaining entry to the UK [15]. Law-biding Hongkongers, of course, never did this.
The conduct of the then Home Secretary and Foreign Secretaries disgraced the United Kingdom. What we saw was the UK government misread Portugal’s honourable intentions. The UK government also interfered with another sovereign state's policy to align it with the UK's own discriminatory approach.
1.2 Lord Goldsmith's 2008 Review: A Path to Fairness
In the 2008 independent review ‘Citizenship: Our Common Bond’, commissioned by the Labour Government, Lord Goldsmith KC (former Attorney General) described BN(O) as an ‘anomalous’ category and highlighted the unfairness to Hong Kong holders [16]. Although he initially referenced Foreign and Commonwealth Office advice suggesting that extending full rights might breach the Sino-British Joint Declaration (JD), Lord Goldsmith clarified in a 2020 letter to then-Home Secretary Priti Patel MP that no legal barrier exists [17]. The JD's memorandum was intended only "to dictate the status of BDTCs at the moment of handover (paragraph 16)’, i.e., 30 June 1997, not as a ‘permanent restriction’ (paragraph 18) [17]. Extending rights, including right of abode or Indefinite Leave to Remain (ILR), to BN(O) holders on or after 1 July 1997 does not violate the JD [17] [18] [19] [20] [21]. Precedents like the British Nationality (Hong Kong) Acts 1990 and 1997 granted registration rights without breach. Full citizenship for BN(O) holders would align with Lord Goldsmith's view that equalising rights among British nationals is fair and would simplify the BNA 1981.
Lord Goldsmith also observed that ‘it is likely that many [people of Hong Kong] 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’ (paragraph 12, p. 73) [11]. This underscores that mass migration was not expected (and not happened!) even if rights had been extended earlier, yet unequal status persisted on discriminatory grounds.
2. Current and Proposed Discrimination: BN(O) Visa Route and Earned Settlement
China violated the Sino-British Joint Declaration by enacting the National Security Law; the 2021 BN(O) visa scheme (no number of applicants capped) was therefore created in response. However, BN(O) visa holders have to follow standard immigration paths as if they were aliens, despite their British nationality. The route imposes high application costs, a B1-level English-language requirement for ILR, no mandatory income threshold under current rules, and stricter criminality checks (generally barring imprisonment of 12 months or more) [22].
Ironically, this contrasts sharply with Portuguese Macanese residents in the UK under the EU Settlement Scheme, who faced no Life in the UK Test and no English-language requirement when converting pre-settled status to settled status (ILR) after five years of continuous residence.
The ongoing consultation ‘A Fairer Pathway to Settlement’ (initiated November 2025, closing 12 February 2026) proposes a 10-year baseline ‘earned settlement’ model for most routes, with adjustments for contributions; mandatory B2 English; the Life in the UK Test; earnings above £12,570 p.a. for 3–5 years; and stricter criminality rules (potentially no convictions) [23]. While the BN(O) route is explicitly exempted and retains its 5-year path to settlement [18], maintaining or tightening rules for other cohorts without broader exemptions risks entrenching inequality and undermining integration for a community with uniquely strong historical ties to the UK.
3. Recommendations
(a) In line with practices in other European countries such as France and Portugal, the British Government must end discriminatory treatment of British Hong Kongers holding British National (Overseas) status by granting them full British citizenship, as was done for the Windrush generation;
(b) Simplify the British Nationality Act 1981 once rights among all British nationals are equalised. More stringent immigration criteria can then apply to aliens.
References
[1] Mark, C., (2020). Decolonising Britishness? The 1981 British Nationality Act and the Identity Crisis of Hong Kong Elites, The Journal of Imperial and Commonwealth History, 48:3, 565-590, DOI: 10.1080/03086534.2019.1638619 [accessed 22nd Jan 2026]
[2] A letter sent to Vice President Franco FRATTINI of European Commission regarding ‘Proposal to amend EC Visa Regulation (EC) No. 539/2001 (COM(2006) 84 final)’ submitted to the chairman of the Standing Committee of international immigration refugee and criminal law, dated 25 September 2006. https://www.statewatch.org/media/documents/news/2006/oct/eu-meijers-cttee-vis-proposal.pdf [accessed 22nd Jan 2026]
[3] Dummett, Anne (1981) ‘The New British Nationality Act’, British Journal of Law and Society, Vol. 8, No. 2, DOI: 10.2307/1409722 [accessed 22nd Jan, 2026]
[4] Clayton, G. (2008). Textbook on Immigration and Asylum Law (3rd edition). Oxford University Press: New York.
[5] National Archive Office in London. File number: FCO 40/809
[6] National Archive Office in London. File number: FCO 40/1111
[7] ‘British Nationality Law: discussion of possible changes’. Green paper published in 1977
[8] ‘British Nationality Law: outline of proposed legislation’ white paper published in 1980
[9] Browne, Anthony (2002). Last colonial subjects given full rights. The Guardian. https://www.theguardian.com/politics/2002/may/12/uk.foreignpolicy1 [accessed 22nd Jan 2026]
[10] National Archive Office in London. File number: FCO 40/568
[11] The case: Applications No.: 4715/70, 4783/71, 4827/71; East African Asians vs. the United Kingdom, 1973 (http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-74111)
[12] National Archive Office in London. File numbers: FCO 53/270; FCO 40/392
[13] There are many publications about this point. For example, Chua, C. (1990). The Sino-British agreement and nationality: Hong Kong’s future in the hands of the people’s republic of china. Pacific Basin Law Journal, 8(1), p. 163-176. DOI: 10.5070/P881021965 [accessed 22nd Jan, 2026]
[14] House of Lords and House of Commons, Joint Committee on Human Rights. Review of International Human Rights Instruments. Seventeenth Report of Session 2004-05. Published on 31 March 2005 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited.
[15] Lam, Jeffie (2018). Britain’s ‘disgraceful’ pre-handover efforts to deny nationality to Hongkongers revealed in declassified cabinet files. South China Morning Post. https://www.scmp.com/news/hong-kong/politics/article/2156385/britains-disgraceful-pre-handover-efforts-deny-nationality [accessed 22nd Jan 2026]
[16] Lord Goldsmiths QC (2008). Citizenship: Our Common Bond. Department of Justice. https://image.guardian.co.uk/sys-files/Politics/documents/2008/03/11/citizenship-report-full.pdf [accessed 22nd Jan 2026]
[17] Freedom of Information (FOI) 08890/2025.
[18] Lau, Stuart (2020). Britain could give Hong Kong BN(O) passport holders right of abode, former top UK adviser says. South China Morning Post. https://www.scmp.com/news/china/diplomacy/article/3051995/britain-could-give-hong-kong-bno-passport-holders-right-abode [accessed 22nd Jan 2026]
[19] Hong Kong Watch (2020). Former Attorney General condemns Government for misquoting BNO legal advice and says Government can legally extend BNO rights. https://www.hongkongwatch.org/all-posts/2020/2/24/former-attorney-general-condemns-for-misquoting-his-bno-legal-advice-andnbspsays-government-can-legally-extend-right-of-abode [accessed 22nd Jan 2026]
[20] Gye, Huge. (2020). Priti Patel and Dominic Raab accused of misrepresenting legal advice on whether Hong Kong nationals can settle in UK after protests. The i Paper. https://inews.co.uk/news/politics/priti-patel-dominic-raab-accusation-misrepresenting-legal-advice-hong-kong-uk-401408 [accessed 22nd Jan 2026]
[21] https://x.com/HugoGye/status/1231983577975402496 [accessed 22nd Jan 2026]
[22] HM Government (2020). Hong Kong British National (Overseas) Visa policy statement. https://www.gov.uk/government/publications/hong-kong-bno-visa-policy-statement/hong-kong-british-national-overseas-visa-policy-statement-plain-text-version [accessed 22nd Jan 2026]
[23] HM Government (2025). A Fairer Pathway to Settlement: statement and accompanying consultation on earned settlement. https://www.gov.uk/government/consultations/earned-settlement/a-fairer-pathway-to-settlement-statement-and-accompanying-consultation-on-earned-settlement-accessible [accessed 22nd Jan 2026]
January 2026