Written evidence from Humphrey Lau and Noble Sampson

BritishHongKong (HNG0345)

 

Executive Summary

 

  1. BritishHongKong (BHK) has identified two areas that suggested for review.
  2. The first area is the nationality arrangement due to the transfer of sovereignty over Hong Kong to People’s Republic of China (PRC). That made more than 30 years ago. The arrangement is discriminative in nature, is in lack of human right, making British nationals in Hong Kong vulnerable and people not having necessary protection by the United Kingdom of Great Britain and Northern Ireland (UK) government. Particularly, the people of Hong Kong were consulted with neither the nationality arrangement nor the future of Hong Kong after 1997.
  3. The second area is the work of Foreign and Commonwealth Office (FCO). The FCO fails to support British nationals of Chinese ethnicity in Hong Kong after 1997. There are four aspects suggested for review. The FCO has failed, firstly, to report British National (Overseas) (BN(O)) issue in six monthly reports since July 2009. Secondly, the FCO does not promote the nationality status of BN(O) to other countries outside the European Union (EU), which causes much confusion and hindrance when BN(O) travelling abroad after 1997. The negligence attitude of the FCO towards BN(O) makes the differences between British citizens and other British nationals in terms of ease of travel. Thirdly, the FCO fails to provide clear travel advice, including visa requirement of foreign countries to different categories of British nationals and no longer presents a list of visa-free countries for BN(O) passport. Finally, the British Consulate General in Hong Kong (BCG-HK) fails to advertise BN(O) passport as a prove of British nationality for lifetime in recent years.
  4. Four recommendations are presented at the end of this document (see paragraphs 18-21 for details).

Brief Introduction

 

  1. The BritishHongkong (BHK) is a voluntary human rights organisation found and registered in Scotland in 2008. The registration number is SC 342073. We lobby on behalf of all BN(O) of all ethnicities for the basic human rights that we deserved,  that is full British citizenship and EU citizenship.

 

Factual Information

 

  1. The BHK identifies two key areas in terms of nationality suggested for review.
  2. The first area is the British nationality of Hong Kong people.
  3. The BHK understands the enactment of British nationality laws is the work of Home Office. But the issue of British nationality overseas is the matter of FCO[1]. What we are going to address would be relevant in this inquiry held by Foreign Affairs Committee of the House of Common.
  4. British nationality laws have been evolving much since the early 20th century[2],[3]. People in other former colonies had a say in determining their future and nationality after independence. But the UK Government (UKG) has never consulted with the people of Hong Kong about the change in their nationality status as well as the future of Hong Kong after 1997. Besides, European Convention on Human Rights is not extended to Hong Kong when the UK joined the European Economic Community (EEC) in 1973[4]. A possible route for complaint never exists.
  5. The main nationality form of the British nationals in Hong Kong with Chinese ethnicity granted is British National (Overseas) (BN(O)). It was under British Nationality (Hong Kong) Order 1986, which became effective on 1st July, 1987. What the public known is the creation of the category of BN(O) is the result of the Sino-British Joint Declaration (Joint Declaration) signed in 1984 specified in the Memorandum of the UK[5]. The category of BN(O) is created only for those British Dependent Territories Citizens (BDTC) with the connection to Hong Kong only.

 

However, what the BHK has identified is the UKG puts the cart before the horse about the changes in the nationality of Hong Kong people for 1997. Before the British Nationality Act 1981 (BNA 1981) became effective on 1st Jan 1983 upon the principle of jus sanguinis, people in Hong Kong could acquire the same status as those in the UK: Citizen of United Kingdom and Colonies (CUKC) under British Nationality Act 1948 (BNA 1948) under Jus soli principle. However, categories of British nationality such as BDTC were created in the BNA 1981 in the time preceding the negotiation with the PRC about the future of Hong Kong after 1997[6]. The BHK understands that the UK nationality policy to be made in 1970s depends on the future of any particular territories[7]. Actually, the UKG determined to give up Hong Kong to the PRC not later than 1997 in 1970; and her nationals in Hong Kong with Chinese ethnicity would be abandoned[8]. Documents further demonstrate that the main purpose of the BNA 1981 is to cut away the CUKCs of Hong Kong with Chinese ethnicity, which is the largest single group outside the United Kingdom[9],[10],[11],[12],[13]. As said in the Guardian in 2002, quoted here, ‘many of the inhabitants [in colonies] had full British citizenship before 1981, when the Conservative government took the right away from all dependent territories in order to stop residents of Hong Kong moving to Britain prior to being handed over to China[14].’ Obviously, it is suggested that the UKG wholeheartedly gives up Hong Kong and has no confidence in the future of Hong Kong after 1997. The UKG fears the influx of CUKCs Hong Kong to the UK  after 1997[15],[16], likes those CUKC Passport Holders (UKPH) in Uganda in the 1960-70s did. Otherwise, she would be challenged in European Court of Human Right[17].

 

Nevertheless, what Lord Goldsmith QC said in his report titled ‘Citizenship: our common bond’ published in 2008, echoes to the reality, we quote,

 

‘12 ……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.(Goldsmith’s report, p. 73)’ 

 

Establishing the status of BDTC is the foundation for Joint Declaration rather than the consequence of Joint Declaration. The UKG removed people’s citizenship twice (i.e., from CUKC to BDTC, then BN(O)) in just 4 years (from 1st Jan 1983 to 1st July, 1987)!

 

What disgrace to the Hong Kong people more is that the UKG granted full citizenships to all BDTCs in other territories after 1997 through Nationality, Immigration and Asylum Act 2002! What is much more, there are more than 430 million EU citizens who are already guaranteed these very same rights to live and work in the UK under EU treaties, which have been present since 1973. There is no justifiable reason for the UK to continue to deny these rights to BN(O), whose number is far less than the number of EU citizens. What the UKG does is very different from Portugal, another member state of EU, granting full Portuguese citizenships to all the naturally born people in Macao before the transfer of sovereignty from Portugal to the PRC over Macao in 1999. The influx of Portuguese Macanese with Chinese ethnicity to Portugal or other member states of EU never happens.

  1. The BHK also believes that the nationality issue is also due to ethnicity[18].  While all British nationals previously had the rights to enter the UK, the removal of these rights and the segregation of British nationals in the 1960s to 1980s were based heavily on ethnic origin. 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, quoted a view from a British nationality law expert, Ann Dummett, stated: ‘There is no indication at all in our [British] nationality law of ethnic origin being a criterion. But the purpose of the law since 1981, and the manner in which it is implemented, make sure that ethnic origin is in fact and in practice a deciding factor[19].’ According to Ann Dummett too, ‘the 1981 Nationality Act in effect gave full British citizenship to a group of whom at least 96% are white people, and the other, less favourable forms of British nationality to groups who are at least 98% non-white’[20]. It is unacceptable that such manifestly racially discriminatory policies still exist in modern day Britain.
  2. The distinctions between categories of British nationals, developed since the BNA 1981, violate the modern European and international human rights standards[21],[22]. As said in another submission made by the BHK in 2009, we said, quoted here, ‘Protocol 4 to the European Convention of Human Rights and Article 12 of the International Convention on Civil and Political Rights guarantees the right of nationals to enter their country of nationality. Despite the UK being a signatory to these human rights instruments, British nationals who are not full British citizens do not currently have a right to enter the UK. …… This is despite the fact that EU laws already allow hundreds of millions EU citizens to live and work freely in the UK[23].’ Similar findings were reported in another enquiry held by Foreign Affairs Committee of House of Commons about Hong Kong in 1989[24].

 

In a report titled ‘Citizenship: our common bond’ published in 2008 after a citizenship review headed by Lord Goldsmith QC, he agrees that the category of BN(O) is unfair to the people of Hong Kong (see Appendix I for relevant paragraphs). He further suggests that British nationals should be allowed to register for British citizenship in order to simplify British nationality laws and to equalise the rights among all British nationals. But Lord Goldsmith had not extended this recommendation to BN(O), citing the Joint Declaration with the PRC as a potential barrier[25]. As testament to this, various laws since then have granted certain British Nationals (Overseas) an entitlement to register as full British citizens—the British Nationality (Hong Kong) Act 1990, British Nationality (Hong Kong) Act 1997 etc—none of which have breached the Joint Declaration. Thus, it is clear that the UK memorandum is not part of the Joint Declaration and to go against it would not constitute a breach of the Treaty[26]’ [27]. This point is further confirmed by a reply to the BHK from Mr Phil Woolas MP, the then Minister of States of Home Office, that the Memoranda exchanged about nationality between the two sides is not technically a part of the main text of the Joint declaration (Home Office CTS: Ref.: M8527/9; shown in Appendix II).

  1. The Umbrella Revolution[28] in Hong Kong on 28th September 2014 and forward demonstrates the extremely weak position of the people of Hong Kong vis-à-vis the Communist China. The BCG-HK did nothing to assist British nationals who were under pepper spray and tear gas attack during peaceful demonstration in Hong Kong. Unlike Gibraltarians and Falkland Islanders, they were granted full British Citizenship and in strong position vis-à-vis the Spanish and Argentine respectively regardless of the nationalities that these countries offered.
  2. The position of the BHK takes the view of what Emma Duncan commented in THE TIMES on 26th August 2014, ‘Hong Kong has every right to feel betrayed.[29]’. The scale of betrayal is comparable to African slaves trading in England about two centuries ago, which is absolutely unfair, desperate and injustice.
  3. In short, evidences in paragraphs 8-14 demonstrate that the nationality arrangement due to the transfer of sovereignty made by the UKG fails to protect her nationals in Hong Kong.
  4. The second area is that the BHK considered there are five aspects of FCO’s work that fail to uphold the right of BN(O).

 

The first aspect is the FCO has, unexpectedly, removed a paragraph reviewing the BN(O) issue or equivalence in her six monthly reports to parliament about Hong Kong since July 2009. But the FCO did that in all the said reports from July 1997 to June 2009 (See Appendix III for exemplars). This action suggests that the UKG would like to cover up the issue of BN(O). This is an extra piece of evidence suggesting that the UKG really wants to eradicate her responsibility towards Her majesty’s subjects in Hong Kong.

 

The second aspect is the FCO fails to promote the status of BN(O) to foreign countries outside EU, making BN(O) being less convenient than British citizens in terms of ease of travel. Visa free is granted to BN(O) for entering Schengen Area in 2006. However, such arrangement is a remedy for  the discriminative nature of the BNA 1981 as descripted in paragraphs 8-12 rather than the FCO initiating her works. The absurdity of British nationality law puts EU to the edge of violating European human right standard[30] if the Council did not do so.

 

The third aspect is the FCO no longer publishes an official list of visa-free countries for BN(O). Ironically, we, the BHK, a non-governmental organisation, without any funding or donations, provide such valuable and precise information for all the British nationals[31] !

The fourth aspect is the FCO, particularly the British Consulate General in Hong Kong (BCG-HK), fails to advertise BN(O) passport as a prove of British nationality for lifetime in recent years. Shortly after 1997, the BCG-HK did remind those BN(O) passport holders living in Hong Kong to renew their passport when expired though the status is valid for lifetime. She advertised in, for example, tube stations or some post offices in Hong Kong. But the BCG-HK stops doing so afterward. According to the statistics as shown in six monthly report in July 1997, the number of BN(O) passports issued just before 1997 should be 3.5 million. But Her Majesty’s Passport Office published in 2012 that the numbers of new BN(O) passport issued between 2007 to 2012 dropped to 713, 337, 325, 337, 385 and 463 respectively[32]!  In other words, almost all BN(O)s did not renew their passports, the only physical proof of their British nationality, for long after expired. This suggests that the FCO tries her best to eliminate her subjects!

 

The final aspect is the FCO and BCG-HK did nothing to educate the British nationals in Hong Kong that BN(O) is in fact a class of British nationality. The FCO never clarifies the rights and responsibility of being a British national. The negligence of the BCG-HK leads to the general Hong Kong people misunderstanding BN(O) as a mere travel document without a British nationality status.

 

Recommendation

  1. We have four recommendations.
  2. First, the choice of nationality should be in the hand of people under the principle of self-determination when the transfer of sovereignty is taken place in order to be in line with international laws. The nature of these choices should also be genuine. We understand the enactment of the BNA 1981 is the consequence of the fall of British Empire and the Britain’s withdrawal from Hong Kong in 1997. However, the status of BN(O) is discriminative in nature.

 

The BHK suggests that those BN(O), who acquired the status of CUKC by birth, naturalisation, registration in Hong Kong on or before 31st December, 1982, who were CUKCs under BNA 1948, have been continuously living in Hong Kong since 1st Jan, 1983 and did not acquire another nationality by naturalisation or registration, should be allowed to choose to register as British citizens as ‘otherwise than by descent’ in line with the BNA 1981 enacted.

 

The BHK believes such arrangement could right the historical wrong.

  1. Second, the FCO should update and publish again the visa-free countries list of BN(O). It should not be published by a non-governmental organisation with extremely limited resources.
  2. Third, the FCO should lobby foreign countries outside the EU, specifically Senegal, Ethiopia, Guyana, the United States, El Salvador, Guatemala, Honduras, Armenia, Iraq, Lebanon, United Arab Emirates, Qatar, Kyrgyzstan, Tajikistan, Taiwan, Brunei, Macedonia, Ukraine, Papua New Guinea and Marshall Islands, for equal visa and other immigration requirement for all categories of British nationals. 
  3. Fourth, the BCG-HK should arrange some resources for rectifying the misunderstanding of BN(O) in Hong Kong. They should promote BN(O) by recalling it as a form of British nationality that people could keep for life.

 

October 2014

Appendix I

Lord Goldsmith said we quote,

 

‘20. First, the arrangements for the transfer of the sovereignty of Hong Kong in 1997 involved detailed consideration of the citizenship status of the population and particularly the ethnic Chinese population after the handover. These arrangements were complicated and resulted in the creation of several new bases for the voluntary acquisition of British citizenship and the creation of a new and sixth form of British nationality – that of British National (Overseas). BN(O) status carried with it the right, recognized by the mainland China to use BN(O) travel documents.

21. It was a matter of political controversy at the time that Hong Kong citizens were not simply entitled to take a full British passport. But it was a part of the arrangements with China that the UK should not grant the right to live in the UK to people who were previously British Dependent Territories Citizens by virtue of a connection to Hong Kong.

22. I have taken the opportunity to hold informal discussions whilst in Hong Kong on the present state of these issues. It is apparent that the fears which lay behind some of the debate on this topic, namely violent repression of the Hong Kong people by the authorities have, fortunately, not materialized even though there remain concerns including about human rights treatment generally in China. It also appears to be the case that many Hong Kong residents are finding it easy to travel on travel documents issued to them by China. Indeed there was a time when such travel documents were more useful in some countries than the BN(O) travel document. I discuss below whether, in the circumstances it would be right to consider changing the BN(O) arrangements. (P. 17-18)

 

Goldsmith further said,

 

‘11. Finally, there is the question of British Nationals Overseas (BN(O)s) who have that status by virtue of their connection to Hong Kong and are not affected by the 2002 legislative changes. They hold the only extant and significant form of British citizenship which is not full citizenship and does not allow an unqualified right to enter and remain in the UK.

12. From discussions that I have had in Hong Kong, it is clear to me that the demand for BN(O) status is dropping. 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. (p. 74)’


Appendix II

 

Appendix III

 

‘British Nationals (Overseas)

73. There are nearly 3.5 million British Nationals (Overseas) (BN(O)), the vast majority of whom live in Hong Kong. British National (Overseas) status is for life, and a BN(O) passport can be renewed at any time in the future even when the passport validity lapses. The British National (Overseas) passport has the benefit of visa-free access to the UK and 111 countries including the Schengen group of countries within the EU. In addition, BN(O) passport holders are eligible to apply for United Kingdom Residence Permits (UKRPs) for study and work permit purposes. The UKRP is issued gratis to British Nationals (Overseas).

74. We remain fully committed to providing the highest standard of consular and passport services to British National (Overseas) passport holders. We offer an identical level of consular service to BN(O) passport holders in third countries to that which we offer to all British Nationals. (P. 15)[33]; Six-monthly Report on Hong Kong 1 July – 31 December 2007)’

 

‘British Nationals (Overseas)

78. There are nearly 3.5 million British Nationals (Overseas) (BN(O)), the vast majority of whom live in Hong Kong. We remain fully committed to providing the highest standard of consular and passport services to BN(O) passport holders. We offer an identical level of consular service to BN(O) passport holders in third countries to that which we offer to all British Nationals. (P. 15; Six-monthly Report on Hong Kong 1 July – 31 December 2008)[34]’

 

‘British Nationals (Overseas)

60. There are nearly 3.5 million British Nationals (Overseas) (BN(O)), the vast majority of whom live in Hong Kong. We remain fully committed to providing the highest standard of consular and passport services to BN(O) passport holders. (P. 11; Six-monthly Report on Hong Kong 1 January – 30 June 2009)[35]’

 

Oct, 2014

 

 

[1] National Archive Office in London. File number: FCO 40/568

[2] National Archive Office in London. File number: FCO 53/164

[3] National Archive Office in London. File number: FCO 53/270

[4] National Archive Office in London. File numbers: FCO 53/270; FCO 40/392

[5] http://www.cmab.gov.hk/en/issues/jd6.htm

[6] National Archive Office in London. File number: FCO 40/809

[7] National Archive Office in London. File number: FCO 53/164

[8] National Archive Office in London. File number: FCO 40/265

[9] National Archive Office in London. File number: FCO 40/809

[10] Clayton, G. (2008). Textbook on Immigration and Asylum Law (3rd edition). Oxford University Press: New York.

[11] National Archive Office in London. File number: FCO 40/1111

[12] ‘British Nationality Law: discussion of possible changes’. Green paper published in 1977

[13] ‘British Nationality Law: outline of proposed legislation’ white paper published in 1980

[14] Also see: http://www.theguardian.com/politics/2002/may/12/uk.foreignpolicy1

[15] Clayton, G. (2008). Textbook on Immigration and Asylum Law (3rd edition). Oxford University Press: New York.

[16] National Archive Office in London. File number: FCO 40/568

[17]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)

[18] 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.

[19] http://www.commissie-meijers.nl/assets/commissiemeijers/Commentaren/2006/CM0613%20Note%20on%20the%20recent%20proposal%20by%20the%20Commission%20to%20amend%20the%20EC%20Visa%20Regulation%2025sept06.pdf

[20] Dummett, Anne. The New British Nationality Act, British Journal of Law and Society, Vol 8, No 2.

[21] http://www.commissie-meijers.nl/assets/commissiemeijers/Commentaren/2006/CM0613%20Note%20on%20the%20recent%20proposal%20by%20the%20Commission%20to%20amend%20the%20EC%20Visa%20Regulation%2025sept06.pdf

[22] 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.

[23] Written Evidence submitted by BritishHongKong to Human Rights Joint Committee in 2009. http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/62/62we36.htm#note629

[24] House of Commons, Session 1988-89. Foreign Affairs Committee. Second Report. Hong Kong Volume II. Minutes of Evidence with Appendices. Published on 28 June 1989 by Her Majesty’s Stationary Office.

[25] Lord Goldsmiths QC (2008). Citizenship: Our Common Bond. Department of Justice.

[26] Written Evidence submitted by BritishHongKong to Human Rights Joint Committee in 2009. http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/62/62we36.htm#note633

[27] Written Evidence submitted by BritishHongKong to Human Rights Joint Committee in 2008. http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165we05.htm

[28] E.g. http://www.bbc.co.uk/news/world-asia-china-29405195

[29] http://www.thetimes.co.uk/tto/opinion/article4186771.ece

[30] http://www.commissie-meijers.nl/assets/commissiemeijers/Commentaren/2006/CM0613%20Note%20on%20the%20recent%20proposal%20by%20the%20Commission%20to%20amend%20the%20EC%20Visa%20Regulation%2025sept06.pdf

[31] http://www.britishhongkong.org.uk/main/index_files/Page662.htm

[32] https://www.gov.uk/government/publications/passports-issued-under-the-6-british-citizenship-categories-2007-to-2012/passports-issued-under-the-6-british-citizenship-categories-2007-to-2012

[33] Six-monthly Report on Hong Kong 1 July – 31 December 2007. Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty.

[34] Six-monthly Report on Hong Kong 1 July – 31 December 2008. Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty.

[35] Six-monthly Report on Hong Kong 1 January – 31 June 2009. Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty.