Committee (Second Day) (Continued)

Part of Borders, Citizenship and Immigration Bill [HL] – in the House of Lords at 9:00 pm on 2nd March 2009.

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Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office 9:00 pm, 2nd March 2009

When Hong Kong was being handed back to China in 1997, concern was expressed by the governor and the Hong Kong Legislative Council that the status of non-Chinese people could be uncertain. In the 1985 agreement, the PRC accepted only the ethnic Chinese population of Hong Kong as its nationals, and it was feared that non-Chinese British nationals would be left de facto stateless when they lost their BDTC status in June 1997. That was taken up here and in another place and, in February 1997, the then Home Secretary announced that provision would be made to allow solely British ethnic minorities of Hong Kong,

"to apply for registration as British citizens, giving them right of abode in the United Kingdom, after 30 June 1997".—[Hansard, Commons, 4/2/07; col. 553W.]

The Prime Minister confirmed that a couple of days later, adding that those concerned were potentially stateless and now had a nationality.

Following this decision, under the British Nationality (Hong Kong) Act 1997, some 9,000 members of Hong Kong's ethnic minorities have been able to register as British citizens. Unfortunately, the remaining few hundred do not qualify because of an arbitrary residence test. British nationals (overseas), British overseas citizens, British subjects and British protected persons who apply under the 1997 Act must have been ordinarily resident in Hong Kong on 4 February 1997. In 2002, when Section 4B was inserted in the British Nationality Act 1981, the ordinary residence test was abolished for otherwise stateless British overseas citizens, British subjects and British protected persons. Amendment 90 would put solely BNOs on an equal footing with persons holding one of those lesser categories of British nationality.

At the time of the passage of the 2002 Act, a senior official wrote that the reason for the exclusion of BNOs from Section 4B was that British nationals overseas were excluded from the registration entitlement because the vast majority of them held or had held another nationality, and those who did not were believed to be already satisfactorily catered for in terms of the 1997 Act. I am afraid that that was not correct, because, on the qualifying date, some were abroad on temporary assignment, some were studying overseas, some minors were abroad with their parents, and there were a few cases where a child was living in Hong Kong, but, because his parents were abroad, the child was not deemed to be ordinarily resident of Hong Kong.

The elimination of the ordinary residence condition is consistent with general principles set out by Home Office Ministers. On a separate point related to BDTCs, the noble and learned Baroness, Lady Scotland, specifically told me:

"We would prefer not to base our policy on the application of notional registration dates and it seems unnecessary to do so".—[Hansard, 26/2/06; col. WA40.]

When I have raised the plight of these people on previous occasions, Ministers have said that all of them have the right of abode in Hong Kong and that they regard that position as satisfactory. Technically, they are wrong, because, under the basic law, an ethnic minority BNO can lose the right of abode—and, in fact, quite of them have lost it, as I have pointed out in correspondence with Ministers. They are theoretically subject to deportation by the director of immigration, and would lose all their civic rights and privileges.

A more critical error by the Home Office was to wrongly equate right of abode with nationality. Since 1997, solely BNOs have been living on Chinese territory as aliens. They have no country or nationality of their own. Britain, the country of their passport, refuses to accept them. It is only right that we equalise the position of solely BNOs with that of British overseas citizens, British subjects and British protected persons. To do this, Amendment 90 brings BNOs into Section 4(b) of the British Nationality Act 1981, which covers otherwise stateless British overseas citizens, British subjects and British protected persons.

The amendment would also remove two bizarre paradoxes in our nationality law. First, it penalises any member of the British ethnic minority in Hong Kong who took steps to retain their British nationality prior to the handover. An otherwise stateless former Hong Kong BDTC who registered as a BNO needs to meet the arbitrary residence test that I have described, whereas if he failed to register as a BNO, he automatically became a British overseas citizen on 1 July 1997 and does not need to satisfy any ordinary residence test to register for British citizenship. Why should the law penalise those who took steps to remain British? Surely we ought to fix that.

Secondly, the child of an otherwise stateless BNO becomes a BOC at birth, giving him the right to register for full British citizenship even though his parents are denied the same entitlement.

Before Labour came to power in 1997, the present Justice Secretary, Mr Jack Straw, said:

"A British national overseas passport carries with it the right of abode nowhere. The claim that this amounts to British nationality is pure sophistry. Common sense and common humanity demand that we give these people full British citizenship".

Amendment 96 gives effect to Government commitments that children will not be born stateless to persons from the solely British ethnic minority. In 1984, a Home Office memorandum stated unambiguously:

"Firm assurances were given by the Government during debates that no BDTCs would become stateless as a result of the agreement with China, and neither would their children born after 1 July 1997".

In the Second Reading debate on the Hong Kong Bill, at the end of 1984, the then Home Office Minister, Lady Young, told me:

"The Government's position is that no former Hong Kong BDTC nor any child born to such a person, should be made stateless as a result of the amendments envisaged in the Bill".—[Hansard, 14/3/85; col. 237.]

In October 1987, the Home Office published a Command Paper stating that,

"the underlying principle is that no one who loses BDTC status as a result of the order, nor any child born after 1 July 1997 to such a person, should be stateless".

We have at least three policy statements on the record that no one who lost BDTC status as a result of the handover of Hong Kong to China, nor any child born to them, should be stateless. However, the provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986 have resulted in children being born stateless to former Hong Kong BDTCs. Amendment 96 will rectify this breach of faith and eliminate the statelessness of children born to former Hong Kong BDTCs. It will entitle the beneficiaries to acquire British overseas citizenship, including all stateless children born on or after 1 July 1997, consistent with the arrangements in the 1986 order.

To show noble Lords that this is not something that I have dreamt up that has not happened, I will quote one example—I sent the noble Lord copies of the correspondence. Ajab Taha Barma was born in Hong Kong on 30 July 2007 to parents who were both Hong Kong-born BDTCs otherwise than by descent. The parents lost their BDTC status on 1 July 1997 by virtue of Article 3 in the 1986 order, and the young Ms Barma has been denied British nationality because of the quirk in our nationality law that this amendment seeks to rectify. She does not qualify for BOC citizenship under any of the automatic provisions for conferral of this status to the children of former Hong Kong BDTCs, because they do not cover children of Hong Kong BDTCs whose parents qualified as British citizens under the British Nationality Hong Kong Act 1990. By registering her grandparents, their descendants were made stateless. In March 1985, Lady Young, then Minister, assured me that,

"the Home Secretary has discretion under Section 27(1) of the British Nationality Act 1981, if he thinks fit, to register any minor as a British Overseas Citizen. It would of course be open to any future Home Secretary to make use of this provision in relation to the descendants of non-Chinese BDTCs in Hong Kong if he were satisfied that in any particular case the circumstances justified it".—[Hansard, 14/3/85; col. 238.]

Ajab's parents applied for British overseas citizenship on her behalf under Section 27(1), quoting the policy commitments already mentioned, but were refused on the perverse grounds that she has no connection with British territory. This amendment serves to put the matter right.

We have reneged on the firm commitments to the solely British ethnic minorities and made children such as Ajab stateless, in spite of numerous ministerial statements and command papers that said that that could not happen. That should now be rectified, and this amendment does so in a manner consistent with provisions for others in the same group. I beg to move.