Introduction

 The UK Government has never sought to confer a UK right of abode on Hong Kong British Nationals (Overseas) (BNOs). But it could choose to do so, see my Blog Post Should British Nationals (Overseas) from Hong Kong be given the Right of Abode in the UK? The right of abode in the UK is provided to British Citizens and certain other Commonwealth Citizens by section 2 of the Immigration Act 1971. It is conferred automatically by operation of law. It allows the holder to live in, and to come and go into and from, the United Kingdom without impediment, except as provided for in that Act or as may otherwise be lawfully imposed. It is the gold standard of attachment to the United Kingdom and the key component of possession of full British nationality. How does the status of BNO relate to it and how may the UK right of abode be conferred on BNOs?

British Nationality (Overseas) in UK statute law

As is well BNO status was created under a power in paragraph 2 of the Schedule to the Hong Kong Act 1985, which provided:

Nationality

2 (1) Her Majesty may by Order in Council make provision whereby—

(a) British Dependent Territories citizenship cannot be retained or acquired on or after the relevant date by virtue of a connection with Hong Kong; and

(b) persons who are British Dependent Territories citizens by virtue of any such connection may before that date (or before the end of 1997 if born in that year before the relevant date) acquire a new form of British nationality the holders of which shall be known as British Nationals (Overseas).

 

BNOs are British nationals: It is clear from paragraph 2(1)(b) of the Schedule to the Hong Kong Act 1985 that BNO status is a new form of British nationality. No person may acquire BNO status after the end of 1997, so BNOs form a limited class of persons. As time passes, inevitably, the number of BNOs will fall as they die, and, eventually, none will be left.

The Order made under Hong Kong Act 1985 was the Hong Kong (British Nationality) Order 1986 (the 1986 Order). That provided for the loss of British Dependent Territories citizenship for those who immediately before 1 July 1997 were British Dependent Territories citizens (BDTC’s) by virtue of having a connection with Hong Kong.  It also provided for the right to acquire BNO status. As amended by the Hong Kong (British Nationality) (Amendment) Order 1993, the 1986 Order provides:

Right to acquire new status of British National (Overseas)

 4.—(1) On and after 1st July 1987 there shall be a new form of British nationality the holders of which shall be known as British Nationals (Overseas).

(2) Any person who is a British Dependent Territories citizen by virtue (wholly or partly) of his having a connection with Hong Kong and who, but for his having a connection with Hong Kong, would not be such a citizen [and who applies on or before the relevant date] shall be entitled, before 1st July 1997 (or before the end of 1997 if born in that year before that date), to be registered as a British National (Overseas) and to hold or be included in a passport appropriate to that status.

(3) Any person who, having become a British National (Overseas) by virtue of paragraph (2) above, ceases at any time before 1st July 1997 to be a British Dependent Territories citizen shall at the same time cease to be a British National (Overseas).

[(4) An application for registration under paragraph (2) above made after the relevant date may be accepted if the applicant shows that there are special circumstances which justify his being so registered.

(5) Where any person is registered (or naturalised) as a British Dependent Territories citizen by virtue (wholly or partly) of his having a connection with Hong Kong, after, or less than three months before, the relevant date, the Secretary of State shall register him as a British National (Overseas) if he applies within three months after the date of his registration (or naturalisation) as a British Dependent Territories citizen.

(6) In this article “the relevant date” in relation to a person whose year of birth falls within one of the entries in column 1 of the Second Schedule to this Order, means the date shown in the corresponding entry in column 2.]

The 1986 Order also made provision for persons who ceased to be BDTCs on 1 July 1997 under the Order and who would otherwise by Stateless to automatically acquire British Overseas citizenship, and for certain descendants of BNOs and British Overseas citizens (BOCs) under the Order, born Stateless, to be able to apply for registration as BOCs, see my Blog Post Hong Kong British Overseas citizens (BOCs): A continuing route to British nationality for Stateless Persons. Thus, in the result there are today BNOs and BOCs by virtue of a connection with Hong Kong during its time as a British possession. Neither BNO nor BOC status by itself gives a right of abode in the United Kingdom.

For BNOs  (and other classes of British national) who hold no other citizenship or nationality (i.e. who are otherwise Stateless) there are two routes to registration as British citizens: (1) upon satisfying an ordinary residence test in respect of Hong Kong, under s 1 of the British Nationality (Hong Kong) Act 1997, and (2) under s 4B of the British Nationality Act 1981 (the 1981 Act). However, where a person possesses Chinese nationality, neither route is open to them (as that person is not otherwise Stateless)

BNO status is an imperfect form of nationality in that it does not provide its holder a with a right of abode in country in the world that may be called home. For dual or multiple nationals, for example BNOs who are also Chinese nationals, the want of the right of abode in the UK does not deprive them of the only place they may live as of right as nationals of a country, as by virtue of being Chinese nationals they may live in Hong Kong or, where permitted, China.

British nationality law provides a home in the world to BNOs who have no other home by virtue of being Stateless but not otherwise. Such an arrangement does not help BNOs who are also Chinese nationals. Thus, for many holders, BNO status is an imperfect form of nationality: it confers no right to enter into and exit from the country of nationality, and to live and work there. While for BNOs with another citizenship or nationality (e.g. that of China), they can look to their other nationality (e.g.  China) for the right to live somewhere (e.g. in Hong Kong as a Chinese national), nonetheless there are many reasons why they would wish to perfect their BNO status so that it confers a right of abode in the UK. Not least among them is the developing attitude of the Chinese authorities towards the people and territory of Hong Kong.

The Use of Statutory Power to Create BNO Status and the Scope to Confer a UK Right of Abode

Paragraph 2(1) of the Schedule to the Hong Kong Act 1985 does not create BNO status, it provides the enabling power for that status to be created by Order as a new form of British nationality.

The scope of the power to create BNO status is fleshed out in paragraph 2(2) of the Schedule to the Hong Kong Act 1985, so that an application for BNO status may be insisted upon and BDTC status immediately prior to 1 July 1997 may be a pre-requisite. It is then fleshed out further in paragraph 2(4) which requires a draft of the Order to be made to be laid before and approved by a resolution of each House of Parliament. None of that is terribly surprising. But paragraph 2(3) is of particular interest:

An Order under this paragraph may make provision for the avoidance of statelessness and may contain such supplementary, transitional and consequential provisions as appear to Her Majesty to be necessary or expedient for the purposes of the Order, including provisions amending the British Nationality Act 1981 and any other enactment.(emphasis supplied)

Thus, an Order made is able to contain ‘supplementary, transitional and consequential provisions’ appearing to be ‘necessary or expedient’ including amendments not only the 1981 Act but also to any other enactment. Paragraph 1 defines ‘enactment’ as ‘any provision of an Act, other than this Act, passed before the relevant date (1 July 1997) and any provision of an instrument made before that date under any such Act.

In principle, it appears that the enabling power is broad enough so that an Order that made provision for the creation of BNO status could have made consequential provision either to confer the UK right of abode on BNOs directly or to amend section  2 of the Immigration Act 1971 to do so. But, as we know, the 1986 Order did not do so. Article 4 of the 1986 Order, and indeed the Order as a whole, says nothing about the right of abode in the UK.

The choice not to confer a UK right of abode is consistent with what the United Kingdom declared in its unilateral Memorandum when it signed the Joint Declaration about Hong Kong with China in 1984:

… the United Kingdom declares that, subject to the completion of the necessary amendments to the relevant United Kingdom legislation:

a) 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. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.

….

(emphasis supplied)

Thus, in 1984 the United Kingdom government declared its intention to create a status without conferring the UK right of abode. The UK Memorandum does not form part of the treaty (Joint Declaration) commitment between the UK and China, see my Blog Post Should British Nationals (Overseas) from Hong Kong be given the Right of Abode in the UK? But it does state UK policy at the time.

By itself the UK Memorandum did not bind the UK, either on the plane of international law (by way of treaty commitment) or in domestic law. It was open to the UK Government then, and is open to them now, to legislate so as to confer a right of abode in BNOs or to provide all BNOs a route to registration as a British citizen. The question of why it does or does not do so is political rather than legal.

A Response to the Hong Kong Crisis: Making an Order today to confer the UK Right of Abode on BNOs

The question arises, could the power to make an Order under paragraph 2 of the Schedule to the Hong Kong Act 1985 be used today to confer a UK right of abode on BNOs? The 1985 Act is still in force. Further, the 1986 Order is not the sole Order made under it; a subsequent amending Order was made in 1993 (see above). Further Orders are possible in principle.

If attaching a UK right of abode to BNO status is considered to be a ‘supplementary’ or ‘consequential provision’ appearing to be ‘necessary or expedient’, then it could be done by Order. Attaching a UK right of abode to a form of British nationality may properly be described as supplementary or consequential. A form of nationality without the right freely to enter into the country of nationality is a defective form of nationality. Indeed, for many such a form lacks the essential attribute to be a nationality at all. As to whether such provision is necessary or expedient, that is a matter for Her Majesty (i.e. the UK Government) to judge.

Using such a process would enable the UK Government to act quickly and avoid having to take primary legislation through Parliament. Thus, were a political crisis in Hong Kong to necessitate drastic action, conferral of a UK right of abode by Order could provide the solution, notwithstanding that a draft of such an Order requires approval by a resolution of each House of Parliament. Further, such a solution would be a far more powerful response than merely creating immigration routes for BNOs to reside and settle in the UK. It would also be properly respectful of their status as British nationals.