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Time for Hongkongers eligible for BN(O) visa scheme to choose where their loyalties lie
 Illustration: Stephen Case
With yet another coronavirus lockdown in Britain, one cannot stretch one's legs easily other than in the supermarket. A brief chat I had with a butcher in a Surrey supermarket in September gave me much food for thought, as I had settled in Britain as a British National (Overseas) émigré a month earlier. The conversation started innocuously – where are you from?
As soon as she said she was from China, and I Hong Kong, she asked me a question in Mandarin that had contributed to years of discontent and one year of social unrest in Hong Kong that culminated in Beijing's imposition of a national security law for the city on June 30 – is Hong Kong not part of China? Not wanting a prolonged, heated discussion with her, in keeping with English politesse, I did not demur. However, as Britain is to open a new BN(O) visa scheme for eligible Hongkongers on January 31 with the right to work and a path to British citizenship in response to the national security law, the issue of Hongkongers' nationality, citizenship, belonging and national identity can no longer be deferred.
In its judgment in the Nottebohm case in 1955, the International Court of Justice noted that, under international law, a state is generally free to determine the criteria and conditions for entry, residence and citizenship. Under Article 1 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws, the nationality law of a state "shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality". The issue of Hong Kong nationality was settled through the 1984 Sino-British Joint Declaration. That included an exchange of memoranda, in which Britain agreed not to extend Hongkongers British citizenship, and a series of British and Chinese legislative acts in preparation for the return of Hong Kong to China's sovereignty on July 1, 1997.
UK unveils details of citizenship offer for Hongkongers with BN(O) passport holdersTo conform to the Joint Declaration, the BN(O) category was created by the Hong Kong Act 1985. It confers a limited right of entry to Britain, but not the right of abode or the right to work without permission. Unlike Britain, China does not recognise dual nationality. To retain the confidence of highly skilled persons in Hong Kong, the Standing Committee of the National People's Congress indicated in 1996, in explanations added to Annex III to the Basic Law, that even though under Chinese nationality law all persons of Chinese descent born in Hong Kong before or after the handover are Chinese nationals, they may use British or other foreign "travel documents" for travel purposes.
Beijing has condemned Britain's offer to BN(O) passport holders in Hong Kong and their dependants as a violation of the memoranda to the Joint Declaration, even though China's Ministry of Foreign Affairs in 2017 described the Joint Declaration as a "historical document that no longer has any realistic meaning".
With the exodus of up to 3 million Hongkongers to Britain, how will Beijing respond when the visa scheme formally opens on January 31?
Hongkongers fearing national security law see BN(O) passports as sign of hopeA recent editorial in pro-establishment media outlet HK01 argued that Hong Kong's historical circumstances and Beijing's desire for stability in Hong Kong had swayed Beijing to let Hongkongers effectively hold multiple nationalities , and that events since 2019 and Britain's offer of residence and citizenship to more than 40 per cent of Hong Kong's population require Beijing to act now to remedy the legal anomaly.
The editorial suggested that the NPC Standing Committee might interpret Article 24 of the Basic Law, which stipulates the criteria for Hong Kong permanent residence with the right of abode in Hong Kong. It could do so in such a way that Hongkongers who wish to emigrate – a Basic Law right in itself under Article 31 – must choose between acquiring foreign nationality and forfeiting Chinese nationality (along with Hong Kong permanent resident status). The suggestion was not out of the blue. The notion that Hongkongers must make such a choice had been floated and encouraged by politicians including former chief executive Leung Chun-ying and Regina Ip Lau Suk-yee, a current member of Hong Kong's Executive Council and Legislative Council. I agree wholeheartedly, for no man can serve two masters. With Hong Kong at its most critical juncture since the handover, it is high time Hongkongers determine where their priorities lie and whether they want to embrace China's Gleichschaltung in its new Hong Kong or lead their lives in a society with freedom of expression, police accountability , the rule of law and universal suffrage, where university scholars challenge government policies and failings, notwithstanding higher taxation.
Freedom is not free, and nationality is not a mere travel document. In her paper "Thick, Thin and Thinner Patriotisms: Is This All There Is?", Dora Kostakopoulou observed that "without either an emotional bond and the affective identity provided by nationality or, alternatively, a thin national identity which motivates citizens to feel that particular institutions are somehow 'theirs', in a meaningful sense, and makes them feel that they belong to a 'self-determining political community', communities are vulnerable to fragmentation".
If China revokes the Chinese nationality of BN(O) passport holders who take up Britain's offer, Britain has a legal duty under the 1961 Convention on the Reduction of Statelessness to immediately extend them British citizenship, as they would otherwise be rendered stateless, in the same manner that it extended British citizenship under the British Nationality (Hong Kong) Act 1997 and the Borders, Citizenship and Immigration Act 2009 to persons of South Asian descent in colonial Hong Kong, whom China, Bangladesh, India, Nepal and Pakistan did not recognise as their nationals under their respective nationality laws. As head of Hong Kong's "executive-led" government who renounced her British citizenship in 2007, Chief Executive Carrie Lam Cheng Yuet-ngor must lead by example and demand that her husband and two sons renounce their British citizenship immediately and pledge their complete and absolute allegiance to China, the Communist Party and Hong Kong.
As for me, next time when I am asked where I am from, I will simply say Britain, originally from Hong Kong. Born and raised in Hong Kong, Phil C.W. Chan is author of China, State Sovereignty and International Legal Order. He is working on his fourth book, When Liberalism, Authoritarianism and Rule of Law Collide: The Tragedy of Hong Kong, due for publication in early 2021 South China Morning Post 2020-12-31 |
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