Introduction

 As a result of the recent troubles in Hong Kong there has been renewed speculation as to whether British Nationals (Overseas) from Hong Kong should be given the right of abode in the United Kingdom.

British Nationals (Overseas) are those persons belonging to Hong Kong who applied for and were granted British National (Overseas) status by the UK in the shadow of the return of Hong Kong to Chinese sovereignty in 1997.  Since that year no new British Nationals (Overseas) can be created.

The status is a form of British nationality arising under the Hong Kong Act 1985 and the Hong Kong (British Nationality) Order 1986.  Possession of the status entitles a person to a UK passport. It does not carry with it the right of abode in the United Kingdom, that is to say the right to come and go, into and from the UK, and to live and work there. Conferring the right of abode in the UK on British Nationals (Overseas) would require an amendment to section 2 of the Immigration Act 1971, where the right of abode is conferred on British citizens.

Could the UK right of abode be conferred on British Nationals (Overseas)?

 The author of  Citizenship: Our Common Bond (2008) and former UK Attorney-General, Lord Goldsmith QC, has recently been quoted in the South China Morning Post as saying in a letter to the UK Home Secretary that if the UK were to extend the right to abode to British Nationals (Overseas) it would not be breaching the Sino-British Joint Declaration, signed on 19^th December 1984. At the moment a British National (Overseas) passport functions merely as a travel document; it does not allow the person to live and work in the United Kingdom. Lord Goldsmith QC said ‘from the materials I have been able to review, it is my view that the UK government can extend the full right of abode to BN(O) passport holders without breaching its side of the Sino-British Joint Declaration’. He is then quoted as saying ‘I said in the 2008 citizenship review that it would be fair to grant greater rights to BN(O) passport holders. I continue to hold this position’.

The UK government’s position is that in his 2008 Citizenship report Lord Goldsmith QC recognised that to give British Nationals (Overseas) full British citizenship would breach commitments made in the 1984 Joint Declaration. However, in a letter to the Home Secretary Lord Goldsmith QC has stated that this was ‘a mischaracterisation of what I said’. He goes on to say ‘I want to make it clear: I never intended my report on citizenship to be a statement on any opinion by me that there would be breach of the arrangements with China if the UK were to offer greater rights,’. Then he said ‘I do not see why the UK Government would be in breach of any obligation undertaken in the Joint Declaration were it to resolve to extend the full right of abode to BN(O) passport holders while continuing to honour their side of Sino-British Joint Declaration’.

The United Kingdom Memorandum

Accompanying the Joint Declaration was an exchange of memoranda between the UK and Chinese Governments. The UK government’s memorandum stated as follows: ‘All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories Citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom.’ (emphasis supplied)

Lord Goldsmith QC’s Position in 2008

 In his Citizenship Report (page 76, paragraph 12), Lord Goldsmith stated ‘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 Declarationon 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’ (emphasis supplied).

As can be seen, the focus of Lord Goldsmith QC’s comments in his Report was on the possible acquisition of British citizenship by reference to advice that he had taken as regards the effect  of such acquisition on the commitments in the 1984 Joint Declaration. At that time, he had advice that conferring British citizenship would be a breach of the Joint Declaration.

The 1984 Joint Declaration, its Annexes, and the Memoranda

 The 1984 Joint Declaration was supplemented by Annexes. In paragraph 7 of the Joint Declaration it says that ‘The Government of the United Kingdom and the Government of the People’s Republic of China agree to implement the preceding declarations and the Annexes to this Joint Declaration’. Paragraph 8 states that the Joint Declaration and its Annexes are equally binding. After that there follows the Memoranda from the UK and China; they do not form part of the Annexes.

Reference has already been made to the United Kingdom memorandum. The Chinese memorandum includes the passage ‘The above Chinese nationals will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People’s Republic of China on account of their holding the above-mentioned British travel documents’. The reference to British travel documents is a reference to the new travel documents that were to be issued to those who were to be British Nationals (Overseas).

Analysis

 As quoted in the South China Morning Post Lord Goldsmith QC appears to be right when he states that the British memorandum was unilateral and ‘neither ‘accepted nor agreed to’ by the Chinese government. But while it may be permissible to treat the British memorandum as not amounting to a permanent restriction on how the United Kingdom should treat the status of BN(O)s, it is clear that to give them the right of abode would be to give them the same right to come and go from the United Kingdom that British citizens enjoy. For all practical purposes giving them the UK right of abode means conferring British citizenship. That would be a departure from what was said by the United Kingdom in its, albeit unilateral, memorandum.

It would appear that the British memorandum does not form part of the Joint Declaration and that the Joint Declaration itself does not bind the hands of the UK Government on this issue. Nonetheless, there remains the point that Lord Goldsmith QC himself identified in 2008: that he had been advised that to give BN(O) holders access to full British citizenship (for all intents and purposes the grant of right of abode does this) would be a breach of commitments made between China and the UK in the 1984 Joint Declaration.

There is also the political problem that China may not be best pleased if 3.4 million people, mostly Chinese nationals, living in the Hong Kong Special Administrative Region, are suddenly granted British citizenship in all but name. It may lead to China revising its view of its commitments under the Joint Declaration and its own Chinese memorandum.

To create a form of nationality without it affording its bearers a home in the world (a right of abode) is highly irregular as a technique of nationality law-making. Nonetheless that is that the UK did when it created the class of British Nationals (Overseas). While such persons may also be Chinese nationals, or if otherwise stateless be able to apply for British citizenship, it nonetheless remains problematic that they lack the right of abode in the country (the UK) that conferred a form of its nationality on them.

In circumstances where it is now argued that the UK could confer a UK right of abode on British Nationals (Overseas), it would be a good idea if Lord Goldsmith QC were to  clarify what he meant when he said in his 2008 Report ‘…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…’.It would not be right to consider that conferring a right of abode on British Nationals (Overseas) is something different to conferring British citizenship on them. A British National (Overseas) who has the right of abode in the United Kingdom has British citizenship in all but name. If it was not possible in 2008 to confer British citizenship on British Nationals (Overseas) without breaching the 1984 Joint Declaration, why it is possible now to grant such persons a UK right of abode? There may be an answer but it is not readily apparent from the statements of Lord Goldsmith QC quoted in the South China Morning Post.