New UK legal advice could open door to Hong Kong citizens

Patrick Wintour Diplomatic editor
Photograph: Isaac Lawrence/AFP/Getty Images

A UK government claim that insurmountable legal obligations to China prevent ministers offering a right of abode to tens of thousands of Hong Kong citizens has been blown apart by new legal advice handed to Conservative MPs.

The advice by one of the UK’s most prominent immigration QCs is likely to shift the mood on the Tory benches in the face of a potential clampdown on Hong Kong by the Chinese government.

The advice says ministers are wrong to suggest they are bound by agreements with China to refuse a right of abode to the tens of thousands of Hong Kong citizens who hold a British national (overseas), or BN(O), passport.

Home Office ministers have been resisting a claim to a legal right of abode on the basis it might be in breach of the understandings the UK government reached with China alongside the 1984 joint declaration on the future of Hong Kong.

The issue has suddenly regained importance after the Chinese government said it intended to impose sweeping new security laws on Hong Kong that risk its semi-autonomous status.

The offer of a right of abode to BN(O) passport-holders is seen as one of the few practical steps that may be in the sole gift of the UK, the former colonial power of the city, to alleviate the plight of citizens fearing persecution by the Chinese state.

A group of Tory MPs, led by Bob Seely and Imran Ahmad Khan, have seen the new legal advice and want at least a clear government statement that no legal obstacle exists to an offer of a right of abode, and any refusal to make that offer is purely a political or diplomatic choice.

BN(O) passport-holders have the right to visit for up to six months, but cannot automatically work in the UK or gain citizenship. Seely said: “It would be a stain on our country’s reputation if other nations were to open their arms, metaphorically speaking, to Hong Kong BN(O) folk in their hour of need before the UK did so.”

Ministers have frequently said, most recently last year, that an offer of right of abode would be in breach of the commitments made by the British and Chinese governments in memorandums attached to the 1984 Sino-British joint declaration on the future of Hong Kong. Those memorandums established BN(O) in Hong Kong as a new class of British citizens that could only be claimed by those born before the handover.

But in a new opinion, Laurie Fransman, the leading QC on nationality law, writes: “Domestic British nationality law has evolved since the 1984 declaration including by giving greater extension of the right of abode to ‘British nationals’, including BN(O)s, in compliance with the expectations of international law.”

British citizens, including some BN(O)s, were given a right to register, he points out, adding: “Manifestly, the UK government did not consider itself barred by the memoranda, or anything else, from taking such action.” He says he endorses those who claim BN(O)s can be given a right of abode.

In making their legal case, ministers also frequently cite a report on citizenship written for the then Labour government by the former attorney general Lord Goldsmith in 2008.

Goldsmith has himself written to the home secretary, Priti Patel, to ask the government to stop using him in aid of their argument. In his letter he insists he had not in 2008 himself passed any judgment on whether a right of abode from BN(O)s would be in breach of the joint declaration, adding his position had been mischaracterised by the government.

He wrote that his report had merely cited, but not endorsed, the contemporary view of the Foreign Office that it may be in breach. His own subsequent independent examination of this issue, he said in his letter sent in February, found that the joint declaration was no obstacle.

Goldsmith pointed out, in a view endorsed by Fransman, that the status of the BN(O)s is not mentioned in the joint declaration but in a memorandum of understanding sent by the British government on the same day. The memorandum was received by the Chinese government, but never signed or agreed.

The memorandum excludes a right of abode, Goldsmith concedes, but he claims it did not bind the future domestic actions of the UK government in perpetuity.

Armed with the new legal arguments, Seely and Ahmad Khan have now written to Patel, saying : “Given the deteriorating situation in Hong Kong, with the continued erosion of the rule of law, it strikes us that the government could consider reviewing its position on BN(O) passports.

“BN(O) passports were always a compromise, dependent in part on the rights guaranteed in the handover settlement. The introduction of the national security legislation means that that settlement is essentially dead. As such there are clear legal and practical grounds for looking again at this matter.”