Lord Goldsmith on BN(O) and British Citizenship

These days the long forgotten Sino-British Joint Declaration signed in 1984 has surfaced again. There are calls for the British government to stand up for Hong Kong's high degree of autonomy, which was supposedly agreed between the United Kingdom and the People's Republic and recorded in the Joint Declaration. I for one will not hold my breath for David Cameron's support. Yet the Joint Declaration itself is an interesting document to study. It provide clues to almost all topics I am fascinated about (from Hong Kong land law to BN(O)). BN(O) first.

On 19 December 1984, the day on which the Joint Declaration was signed, memoranda were exchanged between the UK and the PRC:-

United Kingdom Memorandum 

In connection with the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the question of Hong Kong to be signed this day, the Government of 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. 

b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or before 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a). 

c) United Kingdom consular officials in the Hong Kong Special Administrative Region and elsewhere may renew and replace passports of persons mentioned in sub-paragraph (a) and may also issue them to persons, born before 1 July 1997 of such persons, who had previously been included in the passport of their parent. 

d) Those who have obtained or been included in passports issued by the Government of the United Kingdom under sub-paragraphs (a) and (c) will be entitled to receive, upon request, British consular services and protection when in third countries. 

Beijing, 19 December 1984.

Chinese Memorandum 

The Government of the People's Republic of China has received the memorandum from the Government of the United Kingdom of Great Britain and Northern Ireland dated 19 December 1984. 

Under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether they are holders of the 'British Dependent Territories Citizens' Passport' or not, are Chinese nationals. 

Taking account of the historical background of Hong Kong and its realities, the competent authorities of the Government of the People's Republic of China will, with effect from 1 July 1997, permit Chinese nationals in Hong Kong who were previously called 'British Dependent Territories Citizens' to use travel documents issued by the Government of the United Kingdom for the purpose of travelling to other states and regions. 

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. 

Beijing, 19 December 1984.

The BN(O) passports derive from this United Kingdom Memorandum. I don't profess to understand a thing about international law but the memorandum (singular) does not seem to be forming part of the treaty. The memoranda are not even described as annexes to the Joint Declaration. (Annex 3 is on Hong Kong land leases and I should write on that someday.)

When you google BN(O) you will probably come across Lord Goldsmith. Commissioned by Gordon Brown, Lord Goldsmith submitted a paper entitled Citizenship: Our Common Bond in March 2008.  There are bits and pieces on BN(O):-

19. The aim behind the 1981 Act was to create a system which was “both satisfactory and lasting” on the basis that over time the only categories which would be left would be British Citizenship and British Dependent Territories citizenship. Three major further developments, however, occurred. 

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 ...

[Footnote] 48. For example, the British and Australian governments agreed that the former would provide consular assistance to the nationals of the latter in Iraq. An exception arises in respect of British Nationals (Overseas) of Chinese ethnic origin travelling in China, Hong Kong and the Macao Special Administrative Regions, because China views these nationals as their own. BN(O)s obtain the same protection as other British nationals when travelling elsewhere ... 

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.

His Lordship's comment that "The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship" is oft-cited among Hong Kong commentators and may even give a glimpse of hope to many BN(O)s. It must not be forgotten that Lord Goldsmith, formerly the Attorney General of Tony Blair's government, was not a member of the government at the time when he wrote this report. In any event, these discussions hardly attracted any attention in Britain. One wonders if the issue of BN(O) status will resurface when the Communist China becomes even more oppressive.