British National (Overseas)

From Wikipedia, the free encyclopedia
Jump to: navigation, search

British National (Overseas), commonly known as BN(O), is one of the major classes of British nationality under British nationality law. Holders of this nationality are British nationals and Commonwealth citizens, but not British citizens. The status of BN(O) does not grant right of abode anywhere, including the United Kingdom and Hong Kong,1 but almost all BN(O)s are Hong Kongers of Chinese ancestry and are permanent residents of Hong Kong.

The British National (Overseas) status was created in the 1980s in anticipation of Hong Kong's reversion to Chinese sovereignty in 1997. The nationality was "tailor-made" for Hong Kong residents with British Dependent Territories Citizen status by virtue of their connection with Hong Kong: It allowed Hong Kongers to retain a relationship with the United Kingdom after the handover of sovereignty over Hong Kong to China, but did not grant them the right to settle in the UK.2 From 1 July 1987 to 30 June 1997 around 3.4 million of the British Dependent Territories Citizens of Hong Kong (mainly ethnic Chinese) successfully gained British National (Overseas) status by registration. Hong Kong's British Dependent Territories citizenship ceased to exist on 1 July 1997, when China resumed sovereignty over Hong Kong.

With the growing visa-free regions granted by Hong Kong Special Administrative Region passport, most British National (Overseas) passports have not been renewed by the Chinese holders. As of 2007, only 800,000 of them held a valid British National (Overseas) passport. As the BN(O) nationality cannot be gained any more, the number of BN(O)s will decrease over time and the nationality will eventually disappear.

Main characteristics

The main characteristics of British National (Overseas) nationality are:3

  • It could only be acquired by registration, not automatically.
  • It could only be acquired before the end of the registration period in 1997.
  • It can be held with another nationality or citizenship, including another form of British nationality (e.g. British citizenship).
  • It cannot be transmitted (children of British Nationals (Overseas) cannot gain such status).
  • Once renounced, it cannot be regained.
  • It cannot be lost automatically, but it can be lost by deprivation.
  • British Nationals (Overseas) can enter the UK for up to six months as a visitor, but must obtain a visa to reside in the UK for more than six months or to study or work there.
  • British Nationals (Overseas) are legally entitled to hold a passport in that status - there is no discretion to refuse to issue a passport.
  • British Nationals (Overseas) who held no other citizenship on 19 March 2009 are entitled to register as full British citizens.4

History

Background

By the late 1970s, it had become a public concern in colonial Hong Kong that the 99-year land lease of the New Territories, a major region of Hong Kong, to Britain would expire in around 20 years. The public concern immediately resulted in a series of negotiations between the Chinese and British government in the early 1980s regarding the future prospect of Hong Kong. The negotiations resulted in the Sino-British Joint Declaration on 9 December 1984 stating the transfer of the sovereignty to the People's Republic of China on 1 July 1997.

However, the decision reached by the two governments in the Joint Declaration brought uncertainty to the general public of Hong Kong. Many of them were deeply worried about the prospect of being ruled by the Chinese regime and started to have doubts about the future prospect of Hong Kong. In order to avoid Hong Kong people migrating to Britain and other places, and to reinforce people's confidence in the future of Hong Kong, the British government introduced a new class of British nationality according to the provisions of the United Kingdom Memorandum to the Joint Declaration which would allow Hong Kong's British Dependent Territories Citizens, who were mostly ethnic Chinese, to retain an appropriate relationship with the United Kingdom after 1997.

Creation of the Nationality: Hong Kong Act 1985

After the signing of the Joint Declaration, a new class of British nationality, known as British National (Overseas), was created by the Hong Kong Act 1985. The new nationality was for life, non-inheritable and was specially created for British Dependent Territories citizens of Hong Kong.

British National (Overseas) passport advertisement by the British Consulate-General, Hong Kong and Macao in 2004.

The 1985 Act was brought into effect by the Hong Kong (British Nationality) Order 1986. Article 4(2) of the Order provided that adults and minors who had a connection to Hong Kong were entitled to apply for becoming British Nationals (Overseas) by registration.5

Becoming a British National (Overseas) was therefore neither an automatic nor an involuntary process and many eligible people who had the requisite connection with Hong Kong never applied to become British Nationals (Overseas). To make it involuntary or automatic would have been contrary to the assurances given to the PRC government which led to the words "eligible to" being used in paragraph (a) of the United Kingdom Memorandum to the Sino-British Joint Declaration. Any person, who failed to register as a British National (Overseas) by 1 July 1997 and would thereby be rendered stateless, automatically became a British Overseas citizen under article 6(1) of the Hong Kong (British Nationality) Order 1986. The deadline for applications passed in 1997.

Registration procedure

The registration procedure of the British National (Overseas) status started on 1 July 1987 and applications could be made in Hong Kong's Immigration Department, passport offices in Britain or passport offices of the British Embassies, Consulates or Missions abroad. The majority however kept their original nationality (BDTC) in the early years when only 15% of the passport applications was for the BN(O) passport.6 In order to avoid peaks in the registration towards the transfer of sovereignty, the government divided Hong Kong's British Dependent Territories Citizens into groups by year of birth in 1993, and a deadline for applying British National (Overseas) status and passport was set for each group ranging from 1993 until 30 September 1997. All late applicants (within a certain age group) without a legitimate written-explanation would be deprived of their right to register. Most applications were made on or before 30 June 1997, and British Dependent Territories citizenship of Hong Kong officially ceased to exist after that day. However, those who acquired Hong Kong's British Dependent Territories citizenship between 1 January and 30 June 1997, were allowed to register until 30 September, nearly three months after the transfer of sovereignty of Hong Kong. In light of the United Kingdom Memorandum to the Joint Declaration, 31 December 1997 was the final expiry date to register for British National (Overseas) status.

After the transfer of sovereignty

As of 31 December 1997, around 3.4 million of Hong Kong's British Dependent Territories Citizens had successfully gained British National (Overseas) status and there were around 2.7 million valid British National (Overseas) passports in use. Circa 2 million Hong Kong residents did not obtain British National (Overseas) status. Most of those were not British Dependent Territories Citizens and held only Hong Kong Certificates of Identity, and therefore they were not entitled to registration. Besides, some British Dependent Territories Citizens of Hong Kong acquired British citizenship before 1997 so they did not need to register to be British Nationals (Overseas).

Prior to the transfer of sovereignty, the data of British Nationals (Overseas) were collected and managed by the Immigration Department Hong Kong. Now the Hong Kong Regional Passport Processing Centre of the Foreign and Commonwealth Office has taken over the responsibility for administering the British National (Overseas) database.

Passports and Visa requirements for BN(O)

BN(O)s are entitled to BN(O) passports. They are lookalike versions of regular British Citizen passports, but do not have the text "European Union" on the cover. As of 2010 the passports are biometric.

Visa requirements for British Nationals (Overseas) page list visa requirements for the BN(O).


Specific privileges

British Nationals (Overseas) are Commonwealth citizens and therefore enjoy certain rights in the United Kingdom. For example, they are eligible to join Her Majesty's Civil Service and, if resident in the UK, can vote there.7 British Nationals (Overseas) can be conferred British honours, receive peerages and become peers of the House of Lords. If living in the UK without any immigration restrictions, they can also stand for election to Parliament and local councils.

British Nationals (Overseas) can apply to enter the UK on a working holiday Tier 5 Youth Mobility Scheme (YMS) visa. BN(O) applicants who hold funds of £1,600 or more and aged 18–30 are eligible to apply. YMS entry clearance holders are free to perform many activities (with certain restrictions) in the UK for at most two years. BOCs, BOTCs and BN(O)s granted entry clearance under the YMS do not need to be sponsored for the YMS with no quotas.89

British Nationals (Overseas) can register as British citizens (rather than having to apply for naturalisation) under section 4 of the British Nationality Act 1981, after living in the United Kingdom for five years; the last year of which must have been without any immigration restrictions (such as by holding Indefinite Leave to Remain (ILR) or its equivalent). Section 4 registration confers British citizenships otherwise than by descent and hence children born subsequently outside the United Kingdom will normally have access to British citizenship.

Restrictions

China

Although British Nationals (Overseas) are basically regarded as British nationals under British nationality law, the People's Republic of China regards British National (Overseas) passports solely as a travel document.10 British Nationals (Overseas) who are of Chinese descent are solely regarded as Chinese citizens by the People's Republic of China, and unlike the situation with the United States and Australia, there are no special consular agreements which override the master nationality rule.

As a result, they are not entitled to consular protection in China, Hong Kong and Macao.11 This practice is also followed in public cases: when a senior journalist and British National (Overseas), Ching Cheong, of The Straits Times of Singapore was detained, accused and imprisoned from April 2005 to February 2008 by the government of People's Republic of China for alleged espionage by providing state secrets to Taiwan, the British government refused to provide consular protection to him despite civil rights groups urging the Foreign Office to do so. The British Foreign Office explained that they could provide assistance to Ching, but they simply could not intervene in the judicial proceedings of other countries.12

Taiwan

The Republic of China only fully recognizes the British nationality of British citizens but not British Nationals (Overseas). Holders of British National (Overseas) passports or Hong Kong Special Administration Region passports need an Exit & Entry Permit (landing visa) specific for Hong Kong and Macao Residents to enter Taiwan.13

Absence of right of abode in the UK

The status of British National (Overseas) was specially created for British Dependent Territories Citizens of Hong Kong, and the British government does not provide them with right of abode in the United Kingdom. The only exception is that a British National (Overseas) born before 1983 who has been a British citizen since before 1983 can renounce British citizenship without losing right of abode in the UK.

Since 1 October 1997, no one can acquire British National (Overseas) status, by birth or otherwise. This means children cannot inherit British National (Overseas) status, and eventually the status will disappear.14

Criticism and misuse

  • The creation of a new class of British nationality (with fewer privileges) was met with criticism from many Hong Kong residents who felt that British citizenship would have been more appropriate in light of the "moral debt" owed to them by the UK.1516 Some British politicians17 and magazines18 also criticized the creation of BN(O) status.
  • The British Nationality Law 1981 has been criticised by experts,19 as well as by the Committee on the Elimination of Racial Discrimination of the United Nations,20 on the grounds that the different classes of British nationality it created are, in fact, closely related to the ethnic origins of their holders.

In recent years, the British National (Overseas) passport has been criticized for being too expensive compared to the much less expensive Hong Kong Special Administrative Region passport, which has also gained visa-free access in a large number of countries. As a result, the popularity of British National (Overseas) passport has sharply declined and the number of Hong Kong Special Administrative Region passport holders has substantially surpassed the number of British National (Overseas) passport holders.

In the early years after the transfer of sovereignty of Hong Kong, the issue of fake British National (Overseas) passports once aroused international attention as they were being circulated and used by illegal immigrants from the mainland China who wished to gain access to the United Kingdom. Those illegal immigrants were easily discovered by the Hong Kong immigration officers since they failed to speak fluent Cantonese, which is the native (spoken) language in Hong Kong.21

See also

Travel documents

Nationality (law)

Other

Footnotes

  1. ^ [1], Written Answers, House of Lords (4 November 2008)
  2. ^ "United Kingdom Memorandum", Sino-British Joint Declaration, 1984.
  3. ^ UK Border Agency: Chapter 50: British Nationals (Overseas) - Hong Kong Act 1985 & Hong Kong (British Nationality) Order 1986 - general information
  4. ^ Borders, Citizenship and Immigration Act 2009
  5. ^ "Connection to Hong Kong" refers to Hongkongers who gained British Dependent Territories Citizen status by birth, by naturalization, by adoption or by descent.
  6. ^ From 1 July 1987 to 31 December 1989, the Hong Kong government had issued a total of 731,600 passports, in which 85% or 630,700 of them were British Dependent Territories Citizen passports. In contrast, only 100,916 of British National (Overseas) passports were issuedcitation needed.
  7. ^ Representation of the People Act 1983, Section 4
  8. ^ TEMPORARY WORKERS AND YOUTH MOBILITY UNDER THE POINTS BASED SYSTEM - (TIER 5) STATEMENT OF INTENT
  9. ^ Tier 5 (Youth Mobility Scheme) of the Points Based System Policy Guidance
  10. ^ In light of the Nationality Law of the People's Republic of China and the decision made in the 19th session of the 8th Standing Committee of the National People's Congress
  11. ^ Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region, The Nineteenth Session of the Standing Committee of the Eighth National People's Congress, 15 May 1996.
  12. ^ "Ching Cheong Under House-Arrest in China and Allowed to Contact Family", The Sun, 6 June 2005. (in Chinese)
  13. ^ "Entry requirements" Taiwan, Foreign and Commonwealth Office, retrieved in 2008.
  14. ^ http://www.legislation.gov.uk/ukpga/1971/77/section/2
  15. ^ For example, the legislative councilor Dr Henrietta Ip criticized the idea of British National (Overseas) and again urged the UK Parliament, to grant full British citizenship to Hong Kong's British nationals in the council meeting held on 5 July 1989, saying that "we were born and live under British rule on British land.... It is therefore... our right to ask that you should give us back a place of abode so that we can continue to live under British rule on British land if we so wish.... I represent most of all those who live here to firmly request and demand you to grant us the right to full British citizenship so that we can, if we so wish, live in the United Kingdom, our Motherland.... In fact, your resistance to granting us full citizenship and the right of abode in the United Kingdom reflects your doubt about the Joint Declaration. Yet the more you lack confidence in it, the stronger is the reason why you should grant us full citizenship to protect us from communist rule... I say to you that the right of abode in the United Kingdom is the best and the only definitive guarantee.... With your failure to give us such a guarantee, reluctant as I may, I must advise the people of Hong Kong, and urgently now, each to seek for themselves a home of last resort even if they have to leave to do so. I do so because, as a legislator, my duty is with the people first and the stability and prosperity of Hong Kong second, although the two are so interdependent on each other...."
  16. ^ The legislation is sometimes compared with Macau, a former colony of Portugal, where many residents of Chinese descent were granted right of abode in Portugal when Macau was still under colonial rule. They were not deprived of their right of abode after the transfer of sovereignty of Macau in 1999, their Portuguese passports and citizenship are valid and inheritable, and it turned out that many of them still choose to stay in Macau.
  17. ^ Then Shadow Home Secretary, Jack Straw, said in a letter to the then Home Secretary Michael Howard dated 30 January 1997 that a claim that British National (Overseas) status amounts to British nationality "is pure sophistry"."Labour call for British citizenship for Hong Kong ethnic asians", PR Newswire Europe Ltd., 1997.
  18. ^ The Economist also wrote critically in an article published on 3 July 1997 that "the failure to offer citizenship to most of Hong Kong’s residents was shameful", and "it was the height of cynicism to hand 6m people over to a regime of proven brutality without allowing them any means to move elsewhere." The article commented that the real reason that the new Labour government still refused to give full British citizenship to other British Dependent Territories Citizens in around 1997 - because the United Kingdom was waiting until Hong Kong had been disposed of - "would be seen as highly cynical", as Baroness Symons, a Foreign Office minister, has conceded. "Britain’s colonial obligations", The Economist, 3 July 1997.
  19. ^ for example, Ann Dummett, an expert in this area, criticised that "There is no indication at all in our nationality law of ethnic origin being a criterion. But the purpose of the law since 1981, and the manner in which it is implemented, make sure that ethnic origin is in fact and in practice a deciding factor." [2], Letter to Franco FRATTINI, Standing committee of experts on international immigration, refugee and criminal law. Date: 25 September 2006. Ms Dummett also said that the 1981 Nationality Act in effect gave full British citizenship to a group of whom at least 96% are white people, and the other, less favourable forms of British nationality to groups who are at least 98% non-whiteLack of basic human rights in the Borders, Citizenship and Immigration Bill, BritishHongKong
  20. ^ In March 1996, there was a submission to the Committee on the Elimination of Racial Discrimination of United Nations. The committee criticised the arrangements of the BN(O) nationality under "Principal subjects of concern": The Government's statement that South Asian residents of Hong Kong are granted some form of British nationality, whether that of a British National Overseas (BNO) or a British Overseas Citizen (BOC), so that no resident of Hong Kong would be left stateless following the transfer of sovereignty is noted with interest. It is, however, a matter of concern that such status does not grant the bearer the right of abode in the United Kingdom and contrasts with the full citizenship status conferred upon a predominantly white population living in another dependent territory. It is noted that most of the persons holding BNO or BOC status are Asians and that judgements on applications for citizenship appear to vary according to the country of origin, which leads to the assumption that this practice reveals elements of racial discrimination. Concluding observations of the Committee on the Elimination of Racial Discrimination : United Kingdom of Great Britain and Northern Ireland. 28/03/96.
  21. ^ "British Hong Kong Passports Become Amulets to Illegal Immigrants", BBC Chinese, 5 July 2000.

References

Legal documents

Other materials

External links