• Two Passports-A Tough Decision for Some|戴啟思

  • 發布日期:2021-02-13 11:00
  • Two Passports-A Tough Decision for Some|戴啟思

 

Two Passports-A Tough Decision for Some

Two Passports-A Tough Decision for Some

The Central Government's Government's decision to no longer recognize British National (Overseas) passports has ignited discussion about dual-nationals' position.

It is an awkward topic because it is a well-known fact that many residents hold two passports. If these residents are Chinese nationals-and most are-then, under Chinese Nationality law, they are not meant to have another nationality.

There then followed news that the Correctional Services Department (C.S.D.) had asked prisoners who had Chinese and another nationality to choose whether to be treated as either a Chinese national or a foreign national.

If a prisoner decided to be treated as a foreign national, C.S.D. would recognize their entitlement to consular assistance, but they would lose whatever benefits accrued from asserting Chinese nationality.

Because the key to Hong Kong permanent resident status is, in most cases, Chinese nationality, opting to be treated as a foreign national would seem to lead to a loss of that status and expose the prisoner to the risk of deportation at the end of their sentence.

It is a matter of great importance that a dual national makes the ''right'' decision if forced to choose between nationalities. International cases concerning detained foreign nationals show that consular assistance, or the lack of it, can be a matter of life and death.

Foreign nationals detained abroad have the right to seek consular assistance. The foreign country can complain if the host country makes difficulties when prisoners seek consular assistance.

The right arises under Article 36 of the Vienna Convention on Consular Relations 1963 (Consular Convention). The Consular Convention codifies long-standing conventions of consular practice. Article 36 includes (i) the obligation on the part of a state to communicate to a consul a request for assistance from a foreign national who has been arrested or detained in custody and (ii) the right of a consular representative to see detained foreign national and arrange assistance, including legal aid.

A failure on the part of a state to live up to its obligations under Article 36 can have fatal consequences.

Take the case of Mexican nationals in the U.S.A. It is a well-known fact that many Mexican nationals are living in the U.S.A. Some are there legally; many are undocumented. However, they can all fall foul of the law and, if charged with homicide, the consequences of a conviction can be deadly.

In 2003 Mexico brought a case in the International Court of Justice (''I.C.J.") over some 50 of its nationals who had been sentenced to death by U.S. courts over the past couple of decades. In nearly all of the cases, the I.C.J. found the U.S.A. in breach of its obligation to facilitate consular assistance to Mexican prisoners and, in most of them, to secure legal representation.

The U.S.A. had, wrongly, assumed that the obligation under Article 36 concerned only states and the individual prisoners could not complain about its potential breach. Therefore, it had not bothered to make sure its constituent states at least told Mexican prisoners about the right to consular access.

The I.C.J. made it clear that, although the duty under Article 36 was primarily one owed to a state, it could only be discharged by states first being required to inform prisoners of the duty to assist them, if they needed it. Mexico had a just grievance that the U.S.A. laws and procedures were silent on the issue.

The P.R.C. may be within its rights to insist that a prisoner who is a dual national assert only one nationality, but it may not be an easy task for a prisoner to decide.

In the Mexico case, consular assistance and legal help provided through such assistance may have made a real difference to some cases that ended up with an appointment in the death house with an executioner for the Mexican national.

If prisoners are now being asked to choose between passports, it is only fair that they should be told about the consequences of that choice. As prisoners cannot be expected to know the ins and outs of nationality laws, a prisoner can only make an informed choice after letting the prisoner talk to a consular official. If the Secretary of Security has not made arrangements for prisoners to permitted to see consular staff for this purpose, he should do this.



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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