Adrian Berry (Barrister, Garden Court Chambers, London). The original blogpost can be found here. The author can be contacted at adrianb@gclaw.co.uk and via twitter.
Introduction
The UK Government has choices. There are different ways to help British Nationals (Overseas) (BNO)s whose position in Hong Kong has deteriorated as a result of the imposition by China of a new national security law in the territory. The recent UK Government change of heart as regards the ability of BNOs to migrate to the UK for residence and settlement is welcome. However there remain problems relating to family reunion rights, the use of executive policy rather than law to make the change, and the requirement to leave the territory, among others. Occupying prime place among such problems is the continuing delinquency of the existence of British National (Overseas) status as a class of British nationality that confers no right of abode in the UK itself. What more could the UK Government do and why?
British nationality after Empire
A little history hurts. BNOs without the right to come to the UK are not alone as a class of British nationals. Studded around the world are groups of people from former British possessions who hold classes of British nationality that give them no home in the world, no right to come to the country of their nationality, the United Kingdom. If they hold no other nationality, they are, for practical purposes, stateless. With the accelerating decline and then collapse of the UK as a global power as a result of the Second World War and, separately, the renewed resistance to colonial rule, came the onset of formal decolonisation. In the process of legislating for the independence of countries and territories, the UK Parliament withdrew British nationality from the inhabitants of such places, in the expectation that most would acquire the nationality of the newly created states. But some people were not so lucky. They did not pick up such a new nationality. In such circumstances, often, they remained holders of forms of British nationality.
However, as a result of restrictions on UK immigration introduced by the Commonwealth Immigrants Acts of 1962 and 1968 and culminating in the Immigration Act 1971, most holders of British nationality without a parental or grandparental link to the UK lost the right freely to come to the UK and live and work here without restriction. As a result, today, among others, there are classes of British nationals neither linked to a current British overseas territory, nor possessing the right to come to the UK itself by right of holding British nationality. Among these classes of people are British subjects originating from India and Pakistan, British Overseas citizens (BOCs) and British Protected Persons (BPPs) of Lebanese heritage but from west African states, BOCs and BPPs of South Asian heritage from Kenya, BOCs and BPPs of Somali heritage from Yemen, and BOCs of Chinese heritage from Malaysia (Penang and Malacca). Other examples abound.
To put it kindly, this side-ways shuffle out of responsibility for people marooned in the world as a result of British rule and its termination is lamentable. But the judgment must be firmer. As a result of such UK policy, British nationals have suffered real harm and disruption to the lives they lead, have been forcibly displaced, and in some cases have suffered what amounts to persecution. While the newly independent states bear some responsibility, so too does the UK. The policy of creating residual classes of British nationality without a UK right of abode has ruined lives. Belatedly in 2002 Parliament legislated so that many (but by no means all) such persons possessing these forms for British nationality and lacking any other nationality or citizenship, could register as British citizens by entitlement. But many remain otherwise stateless, while others possess another nationality or citizenship but suffer discrimination or even persecution in the country in which they live. It is against that backcloth that UK policy towards BNOs in Hong Kong falls to be considered.
Hong Kong and United Kingdom policy
When Hong Kong was returned to Chinese rule in 1997, all of its then inhabitants who were British Dependent Territories Citizens could opt to retain a form of British nationality, BNO status (those of Chinese heritage additionally became Chinese nationals). But as with the other forms post-colonial British nationality, BNO status did not confer a right of abode in the UK, see my post Should British Nationals (Overseas) from Hong Kong be given the Right of Abode in the UK? As regards the UK and its immigration policy, BNOs were treated as non-visa nationals (entitled to seek entry for visits of up to six months), and subject to the same immigration rules as a people from any third country such as say Algeria or Paraguay.
As of 1 July 2020, as a result of China’s imposition of a national security law in Hong Kong, an act said by the by the UK to breach the 1984 Joint Declaration of China and the UK, the UK states that it will:
- Grant BNOs 5 years limited leave in the UK, with the right to work or study, so that
- after 5 years, they will be able to apply for indefinite leave (Settled Status), and where
- after a further 12 months with Settled Status, they will be able to apply for British citizenship
On the face of it this applies to all BNOs, whether or not they hold a BNO passport at present: The UK Government has stated that all those with BNO status will be eligible. In addition, also eligible will be their family dependants who are usually resident in Hong Kong. Moreover, it is said that the UK Home Office will put in place a simple, streamlined, application process and that there will be no quotas on numbers. What is not to like? Plainly it is a good start. But more could be done consistent with the status of BNOs as British nationals.
First, the precise ambit of the scope of who is a family member needs to be defined and made comprehensive. It should include adult children and there should be family reunion rights even where a family member is not usually resident in Hong Kong. Family life exists across borders and need not cease simply because a child reaches the age of majority.
Second, any rights for BNOs should be put into legislation so that they are entrenched and cannot later easily be reduced or impaired. The UK Immigration Rules are merely statements of executive policy, they are not law (legislation). British nationals belong to the UK as part of its constitutional order, it is right that they should be provided for and protected by its Parliament and not subject to ever-changing executive fashion. Quotas may come back into political vogue if many BNOs migrate to the UK, family reunion rights may be tightened. Legislation entrenches rights and insures against hasty alteration based on narrow political calculation by the Government of the day.
Third, the UK Government offers an immigration solution that requires BNOs to leave Hong Kong and commit to a UK life for five years in order to obtain settlement. Why? British citizens are not obliged to live in the UK to enjoy the benefits of British nationality. How much better to confer a right of abode on BNOs, so they can stay in Hong Kong if they so wish and defend their settled way of life safe in the knowledge that they have rights not merely possibilities in the UK; so that they can come and go freely from the UK without having to be here for five years; and so that they may enjoy wider, immigration access to third counties in the Pacific region and beyond where British nationals with the UK right of abode enjoy such advantages.
In addition, conferral of the right of abode in the UK would rectify the harm done by creating a form of British nationality without attaching a UK right of abode. Arguably conferral of a right of abode does not need an Act or Parliament (primary legislation) but can be done by Order (secondary legislation), see my post Hong Kong British Nationals (Overseas) (BNOs): A Route to the UK Right of Abode? The UK Government is moving in the right direction in support of a formerly colonised people who retain British nationality. But more needs to be done to end the second class nationality status that BNOs possess and to enfranchise them fully as British nationals. Now is the time.