Hong Kong British Overseas citizens (BOCs): A continuing route to British nationality for Stateless Persons

Introduction

 As is well known, people from Hong Kong who were British Dependant Territory Citizens (BDTCs) could apply for British National (Overseas) (BNO) status up until 1997, when Hong Kong returned to Chinese sovereignty. What is less well known is that for certain Hong Kong-connected people there was and is also a route to another class of British nationality, British Overseas citizenship In fact,  certain Hong Kong-connected people may still become British Overseas citizens (BOCs) today, over 20 years after the restoration of Chinese rule, if they are otherwise Stateless.

Most people who were Hong Kong BDTCs were considered to be Chinese nationals on the return of Hong Kong to Chinese rule 1997. However, some were not. Persons of non-Chinese ethnic backgrounds or mixed ethnic backgrounds may not have been and are not considered as Chinese nationals by China.  Many Hong Kong-connected persons of Indian or Nepalese heritage have been caught in this way. Such persons would be Stateless today but for the operation of British nationality law.

1 July 1997 – Hong Kong returns to China

 Where a Hong Kong BDTC, who was not considered to be a Chinese national by China, had not acquired British National (Overseas)  status by 1 July 1997, and lost British Dependent Territories Citizenship by operation of law that day (article 3,  Hong Kong (British Nationality) Order 1986/948 (‘the 1986 Order) on the return of Hong Kong to Chinese sovereignty, if that person was otherwise Stateless, she automatically became a BOC by operation of law (article 6(1) of the 1986 Order.

British Overseas citizenship

 Thus, there are a group of people of non-Chinese background, automatically BOCs by virtue of a Hong Kong connection. British Overseas citizenship does not confer a right of abode in the UK or in any remaining British overseas territory. It is a form of British nationality that confers no home in the world, be it Hong Kong, the UK, or elsewhere.

A person may apply for a UK passport as a BOC and may request consular or even diplomatic protection from UK authorities where desired.  But otherwise BOC status is of limited use. That said, travelling on a UK passport, even a BOC one, is not without its advantages in foreign countries. It may enable a person to enter a foreign country visa-free and it may ease a person’s path to work of study permission in that country (depending on that foreign country’s visa and immigration rules), as compared to being a Stateless Person.  Further, a person who is solely a BOC and otherwise Stateless may be able to apply to register as a British citizen under section 4B of the British Nationality Act 1981 or even section 1 of the British Nationality (Hong Kong) Act 1997.

What about Future Generations?

The children and the grandchildren of Hong Kong-connected people who acquired BOC in this way may also acquire BOC status if they would be otherwise Stateless. Thus, the status may perpetuate for two further generations for people who acquired BOC status by operation of law on 1 July 1997.

Firstly, any child born on or after 1 July 1997 to a person who at the time of the birth had become a BOC in this way, or indeed any child born on or after that date to a BNO, becomes a BOC by operation of law if that child would be otherwise Stateless, see article 6 (2) of the 1986 Order.

Thus, regarding the first generation born to a Hong Kong BOC or a BNO, where a child is born otherwise Stateless in the sense of not possessing the nationality or citizenship of any other country, that child automatically becomes a BOC at birth. As result, since 1997 there are a group of persons who are BOCs by virtue of being born on or after that date, and who would be otherwise Stateless.

In addition, there is also provision for transmission of BOC status further, to a second generation born after 1 July 1997. A person born outside the British overseas territories,  to a parent  who is a first generation Hong Kong BOC (under article 6(2) of the 1986 Order) at the time of the birth, is entitled on application to be registered as a BOC  within twelve months of her birth, if to do so would prevent that her being Stateless. That parent’s own father or mother, must immediately prior to 1 July 1997 have been a Hong Kong BDTC otherwise than by descent, see articles 6(3), (4) of the 1986 Order. Further, in the special circumstances of any particular case the requirement to be registered within twelve months of the birth may be extended to six years (article 6(5) of the 1986 Order).

Summing up, for a person who was a Hong Kong BDTC prior to 1st July 1997 and  (i) became a BOC on that date, or (ii)  holds BNO status; (ii) that person’s child born on or after that date who is otherwise Stateless becomes a BOC by operation of law. Thereafter, where that child so born goes on herself to have a child, and that second-generation child would be otherwise Stateless, that second generation child may be registered as a BOC.

An Example of the Whole Process

Take an example of a Hong Kong-connected BDTC who was born in January 1997, where that person is of mixed ethnic or non- Chinese background and is not considered by China to be a Chinese national: where that person did not register as a BN(O) citizen prior to the return of Hong Kong to Chinese rule on 1 July 1997 that person became a BOC in that date.

If that person then went on, say in 2017 (when aged 20), to have a child who was otherwise Stateless, that child automatically became a BOC at birth.

If that child then goes on, say in 2037 (when aged 20), to have a (second generation) child who is otherwise Stateless, then that second-generation child may be registered as BOC as well.

As can be seen, Hong Kong-connected BOC has the potential to perpetuate into the future but only to the second generation.

Finally, where a person is a BOC and would be otherwise be Stateless, that person has the entitlement on application, subject to the satisfaction of the requirements of section 4B of the British Nationality Act 1981, to register as a British citizen. Such registration would have the effect of conferring the right of abode in the United Kingdom and provide the person with a home in the world.

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