• 港版出埃及記|戴啟思
  • 2020-07-18    

 

The BNO Blues

The ‘birthday gift’ from the ‘Motherland’ of the National Security Law on 30 June did not bring joy to a tiny minority of residents on the day. Some of these ungrateful souls would have instead wished that the Central Authorities had forgotten the birthday anniversary or at least forgotten the handsome present.

Amongst these belly-aching residents of the HKSAR, there must be a fair few that were born before 30 June 1997. The United Kingdom offered its birthday gift to this class by confirming the proposed removal of restrictions on rights of entry to the UK for British National (Overseas)-‘BNO’- passport-holders and promising them a not-so-fast track to full citizenship after six years living in that country.

The Central Authorities had said ‘foul’ to this plan when it was floated in early June. That was the time that the British Foreign Secretary, Dominic Raab, first suggested that the United Kingdom might enlarge BNO rights if the Chinese Government brought in the National Security Law.

The Chinese Embassy in London said that this would contradict a Memorandum of Understanding (‘MOU’) executed by the British on 19 December 1984, both countries signed on the day the Joint Declaration was also signed.

An Embassy spokesperson pointed to words in the MOU that suggested that persons who then had the status of Hong Kong British Dependent Territories Citizens, the forerunners of BNO’s, would be able to maintain a connection with the UK. They would do this by holding a British passport which did not give the right of abode in the UK. BNO holders were, in China’s eyes, still Chinese nationals.

(‘Right of abode’ means the right to enter, remain and leave a country without requiring any special permissions. It is the defining characteristic of ‘full’ British citizenship.)

The Ambassador repeated the warning a few days ago. He said that that there would be unspecified dire consequences if the British Government persisted in its “gross interference” with what are purely internal matters.

It does not matter whether the Chinese side is right or wrong about Britain going back on its word. I do not see both parties agreeing to submit the question of BNO passports to international arbitration. There is not much chance therefore of an independent court or tribunal ruling on the issue authoritatively.

The fact is that the UK has adjusted its position after receiving legal advice which was to the effect that international law in this area has developed to such an extent since the 1980’s that it was right to enlarge BNO rights in this way.

What could China and the HKSAR Government do about carrying out the Central Authorities threats and obstruct the plans of BNO’s to leave and take up the UK’s offer?

I venture to say that the HKSAR Government could not do much about it, at least as the law now stands. Article 31 Basic Law deals with the right to leave the HKSAR and travel. The right is not just to travel for a short trip but includes what the article describes as ‘freedom of emigration’. That is a right to leave and not come back again.

The right to travel and to emigrate under Article 31 is not absolute. The freedom can be restrained by law in some instances, such as when a person is required to attend court or pay an outstanding tax bill. Such a limitation on the right under Article 31 would be temporary only. It would last until the court hearing was over or the tax bill paid.

If a new law were made and directed at BNO’s, including those who have not yet secured a BNO Passport, such a law would not be a temporary restraint. It would negate the Article 31 right. There would be no longer a right to travel, let alone emigrate.

Such a move would also contradict the Chinese MOU of 19 December 1984 which complemented the British MOU. The Chinese side promised then to let the Hong Kong people use their British passports (at the time these were British Dependent Territories Citizen passports) as ‘travel documents…for the purpose of travelling to other states and regions’.

Short of a total ban on travelling on all persons who have BNO status-the nearly 3 million residents born before 1 July 1997-it is hard to see how the Government might stop them going. Most will hold HKSAR passports and can exit the region to make use of the Article 31 right without having to use them to leave.

As Pharaoh found to his cost when trying to stop Moses leading the Israelites out of Egypt to the Promised Land, it can be an expensive thing trying to stop an exodus of people determined to leave.

The promised retaliatory measures will, therefore, likely be targeted at British economic interests, and they will do some damage. However, the risk of harm is something that the British Government has already put into the equation when considering its moral obligations to the people of Hong Kong. It believes it must do what it feels to be the right thing to do.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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