British National (Overseas)


British National (Overseas), abbreviated BN(O), is a class of British nationality that was granted by voluntary registration to British Dependent Territories citizens who were Hong Kong residents before the transfer of sovereignty to China in 1997. Individuals with this nationality are British nationals and Commonwealth citizens, but not British citizens. Nationals of this class are subject to immigration controls when entering the United Kingdom and do not have the automatic right of abode there or in Hong Kong, but all BN(O)s would have had permanent resident status in Hong Kong when they acquired this status.

This nationality gives its holders favoured status when they are resident in the United Kingdom, conferring eligibility to vote, obtain citizenship under a simplified process, and serve in public office or non-reserved government positions. There are an estimated 2.9 million BN(O)s; about 350,000 of them hold active British passports with this status and enjoy consular protection when travelling abroad. However, since most BN(O)s also hold Chinese nationality and because China treats its dual nationals as if they were only Chinese, they generally cannot access this protection within Hong Kong, mainland China, or Macau. Automatic five-year residence rights in the UK will be extended to BN(O)s in response to the imposition of Chinese national security legislation in Hong Kong. This change is not yet effective, but is expected to be implemented in the second half of 2020.

Background


Hong Kong was a British colony from 1842 until its transfer to China in 1997.[1] The territory initially consisted only of Hong Kong Island and was expanded to include Kowloon Peninsula and Stonecutters Island in 1860. All of these areas were ceded in perpetuity to the United Kingdom by the Qing dynasty after the Opium Wars.[2] Britain negotiated a further expansion of the colony to include the New Territories in 1898, which were leased (rather than ceded) from Qing China for a period of 99 years.[3]

As the end of the lease drew closer, Hong Kong's future was uncertain.[4] Because most of the territory's industry was developed in the New Territories, separating the leased area and returning only that part of the colony to China was economically and logistically impossible.[5] The colonial government could not grant new land leases in the New Territories past 1997, causing concern among local businesses over the long-term viability of further real estate investment.[4] By the time negotiations began over the future of the colony in the early 1980s, China had since become communist.[6] Local residents were apprehensive about the prospect of being handed over to Chinese rule and overwhelmingly preferred that Hong Kong remain a British territory. The British government attempted to negotiate an extension of its administration of Hong Kong past 1997, but pivoted towards ensuring the city's stability when it became clear that the Chinese authorities would not allow this.[7]

The two governments agreed on the Sino-British Joint Declaration in 1984. The entire territory of Hong Kong would be transferred to the People's Republic of China at the conclusion of the New Territories lease in 1997 and governed under Chinese sovereignty as a special administrative region. The region would be given a high level of autonomy in local affairs and residents were to retain civil liberties such as freedom of speech, assembly, and religion after the transfer.[8]

Nationality arrangements for residents

Before 1983, all citizens of the British Empire, including Hongkongers, held a common nationality.[9] Citizens of the United Kingdom and Colonies (CUKCs) had the unrestricted right to enter and live in the UK,[10] although non-white immigration was systemically discouraged.[11] Immigration from the colonies and other Commonwealth countries was gradually restricted by Parliament from 1962 to 1971 amid decolonisation, when British subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the UK.[12] After passage of the British Nationality Act 1981, CUKCs were reclassified into different nationality groups based on their ancestry and birthplace,[13] and the vast majority of British subjects in Hong Kong became British Dependent Territories citizens (BDTCs) with the right of abode only in Hong Kong.[14] Only those reclassified as British citizens held an automatic right to live in the United Kingdom.[13] The British government issued a memorandum attached to the Joint Declaration that concerned transitional arrangements for the nationality of residents, which included a stipulation that a new nationality would be created for Hongkongers that did not confer the right of abode in the United Kingdom.[15] The British National (Overseas) status was created in 1985 to fulfill this requirement.[16]

Debate over full citizenship rights

The deprivation of full passports and nationality rights for Hongkongers, and its reinforcement as part of the Joint Declaration, drew criticism for effectively making ethnicity the deciding factor in determining what rights British subjects were entitled to.[17][18][19] Hong Kong residents and Legislative Council members, with some supporters in the British Parliament,[17] believed that granting full British citizenship would have been more appropriate for instilling confidence in Hong Kong's post-handover future[20] and that residents should have been offered a choice to continue living under British rule. Proponents argued that giving Hongkongers the right of abode as an "insurance policy" to protect against a potential curbing of civil freedoms by communist authorities after the handover would encourage them to stay in the territory and would prevent a mounting brain drain.[21][22] BDTCs in Gibraltar and the Falkland Islands were already given access to citizenship, and it was noted that asking for the same to be granted to Hong Kong residents was only requesting equal treatment.[23][24] Legislative Councillors and their supporters in Parliament unfavourably compared these nationality arrangements to the situation in Macau, where residents were allowed to retain Portuguese citizenship and right of abode after that territory's transfer to China in 1999.[20][22]

A considerable number of residents began emigrating to other countries in the 1980s. While the number of annual departures remained steady for most of the decade and only started to increase towards its end,[25] the outflow grew dramatically following the 1989 Tiananmen Square protests.[26] The brutality of the Chinese government's response against demonstrations for democracy immediately dimmed local optimism in Hong Kong's future, indicated by a sudden drop in stock market and property values.[27] The crackdown caused a rush among residents to seek permanent residency or citizenship in other countries.[26] Residents feared an erosion of civil rights, the rule of law, and quality of life after the transition to Chinese rule,[28] suspicions that were only exacerbated by the Tiananmen incident.[29] Over a half million people left Hong Kong during the peak migration period from 1987 to 1996.[25] Scepticism in the Chinese government's commitment to Hong Kong's future autonomy was further reflected by high demand for BDTC naturalisation. Even though BDTC status would expire after the handover in 1997 and carried no entitlement to UK right of abode, over 54,000 people applied for it on the final registration date in 1996[30] because the status qualified them to register as BN(O)s.[31]

Despite petitions from Governors David Wilson and Chris Patten asking for full citizenship to be conferred on the colony's residents,[32][33] Parliament ultimately refused to grant all Hongkongers right of abode in the United Kingdom, citing difficulty in absorbing a large number of new citizens and that doing so would contradict the Joint Declaration.[20] Instead, it offered citizenship to only 50,000 qualified residents and their dependents, through the British Nationality Selection Scheme.[34] Because many departing residents were well-educated and held critical positions in medicine, finance, and engineering, the intention of the plan was to convince people within this professional core of Hong Kong's economy to remain in the territory after 1997.[29] This limited grant of citizenship, along with the fact that the provision for nationality without UK right of abode was included in a memorandum of the Joint Declaration and not in the treaty text, has been used by proponents of conferring citizenship on BN(O)s to argue that granting it would not be a violation of that agreement.[35] On the other hand, the Chinese government considers even these restricted grants to be a breach of the treaty[36] and specifically disregards the British citizenship of those who obtained it under the Selection Scheme.[37]

Post-handover developments

Substantive debate on expanding BN(O) rights was restarted in 2020,[38] when the National People's Congress bypassed the Legislative Council and directly approved national security legislation for Hong Kong.[39] This was done despite an explicit stipulation in the Hong Kong Basic Law stating the territory's responsibility for enacting its own legislation in that area.[40] Pro-democracy Legislative Councillors and activists denounced the direct application of national law without local consultation as a fundamental upheaval to the regional legal system and labelled it as the end of "one country, two systems",[41] while the United Kingdom and its allies further condemned the legislation as a severe violation of the Joint Declaration that inherently undermines the autonomy promised to Hong Kong and the fundamental rights of its residents.[42][43] The Home Office initially announced that the existing six-month stay limit on BN(O)s would be extended to renewable periods of 12 months with the right to work.[44][45] When the national security law came into force, the British government declared a further extension of residence rights that will take effect in the latter half of 2020. BN(O)s will have leave to remain in the UK with rights to work and study for five years, after which they may apply for settled status. They will then be eligible for full citizenship after holding settled status for 12 months.[46]

Acquisition and loss


Application deadlines
for registration as a British National (Overseas)[47]
Year of birthRegistration deadline
1967 to 197130 October 1993
1962 to 196631 March 1994
1957 to 196131 August 1994
1947 to 195628 February 1995
Prior to 194730 June 1995
1972 to 197631 October 1995
1977 to 198130 March 1996
1982 to 198629 June 1996
1987 to 199130 September 1996
1992 to 199531 December 1996
199631 March 1997
1 January to 30 June 199730 September 1997

Becoming a British National (Overseas) is no longer possible. Acquisition was not an automatic process and eligible residents had to have applied for the status between 1 July 1987 and the end of the registration period.[31] Registration deadlines were assigned to applicants by their birth year.[47] The last date eligible applicants could register was on 31 December 1997, if they were born in that year and prior to the transfer of sovereignty.[48] BN(O) nationality cannot be transferred by descent, and the number of living status holders will eventually dwindle until there are none. The status was granted in addition to other British nationality classes; an individual can be both a British citizen and a British National (Overseas).[49][50]

Applicants were required to be British Dependent Territories citizens by a connection with Hong Kong.[31] While about 3.4 million people acquired the status,[51] 2.5 million non-BDTC residents (virtually all Chinese nationals) were ineligible.[52] Those ineligible who wished to register as BN(O)s were required to have been naturalised as Hong Kong-connected BDTCs by 31 March 1996. Acquiring Hong Kong BDTC status other than by birth was no longer possible after that date.[47]

Unlike other British nationalities, BN(O) holders are uniquely entitled to hold British passports in that status. Every BN(O) was directly issued British National (Overseas) passports when they first obtained the status, while members of all other nationality classes are first given certificates of registration and do not possess passports as a right.[49] All Hong Kong-connected British Dependent Territories citizens lost BDTC status on 1 July 1997.[50] Individuals who did not acquire Chinese nationality (this generally only applied to those not ethnically Chinese) and would have been stateless at that date automatically became British Overseas citizens.[48]

British National (Overseas) status can be relinquished by a declaration made to the Home Secretary, provided that an individual already possesses or intends to acquire another nationality. Prior to 1 July 1997, deprivation of this nationality was also tied to the loss of British Dependent Territories citizenship.[49] Individuals who successfully registered as British citizens under the British Nationality Selection Scheme automatically lost BDTC status, and consequently also lost BN(O) nationality if they had acquired it.[53] There is no path to restore BN(O) status once lost.[54]

Rights and privileges


British Nationals (Overseas) are exempted from obtaining a visa or entry certificate when visiting the United Kingdom for less than six months.[55] They are eligible to apply for two-year working holiday visas and do not face annual quotas or sponsorship requirements.[56] When travelling in other countries, they may seek British consular protection.[31] BN(O)s are not considered foreign nationals when residing in the UK and are entitled to certain rights as Commonwealth citizens.[57] These include exemption from registration with local police,[58] voting eligibility in UK elections,[59] and the ability to enlist in the British Armed Forces.[60] British Nationals (Overseas) are also eligible to serve in non-reserved Civil Service posts,[61] be granted British honours, receive peerages, and sit in the House of Lords.[13] If given indefinite leave to remain (ILR), they are eligible to stand for election to the House of Commons[62] and local government.[63][64][65] There are about 2.9 million people who retain BN(O) nationality,[66] with 350,000 of them holding active British passports with the status.[44]

BN(O)s may become British citizens by registration, rather than naturalisation, after residing in the United Kingdom for more than five years and possessing ILR for more than one year.[67] Registration confers citizenship otherwise than by descent, meaning that children born outside of the UK to those successfully registered will be British citizens by descent. Becoming a British citizen has no effect on BN(O) status, although someone possessing a British citizen passport would be ineligible to apply for a new BN(O) passport. Instead, the British citizen passport will have an additional observation printed, stating the holder's right of abode in Hong Kong as well as British National (Overseas) status.[48]

Prior to 1997, BN(O)s in qualified occupational classes were eligible to register as British citizens without UK residence requirements under the British Nationality Selection Scheme at the discretion of the Governor of Hong Kong.[68] Additionally, BN(O)s who are not Chinese nationals and held no foreign nationality on 3 February 1997, who were ordinarily resident in Hong Kong on that date, and who continue to reside there are entitled to register as British citizens. Children born after that date who later became BN(O)s and fulfill the other requirements may also register for citizenship. Whether these applicants receive citizenship by descent or otherwise is dependent on how they obtained BDTC status.[69] Remaining BN(O)s who held no other citizenship or nationality on or before 19 March 2009 are entitled to register as British citizens[70][13] by descent. However, if a BN(O) acquires another citizenship or nationality and renounces it after either applicable date before applying to register as a British citizen, that person would not be eligible.[71]

The Hong Kong government does not accord any rights or privileges to British Nationals (Overseas) after 1997, except that they may enter Hong Kong with BN(O) passports without a visa or entry permit.[72] BN(O)s who are also Chinese nationals may seek consular protection from Chinese diplomatic missions even if they only hold British passports.[73]

Restrictions


Although BN(O)s may travel using a British passport, because the status does not entitle its holders to the right of abode in either the United Kingdom or Hong Kong, they may face restrictions when travelling to either place and are not treated identically to British citizens when entering other countries. The Joint Declaration allows continued use of foreign passports as travel documents post-handover,[74] but BN(O)s who are also Chinese nationals are subject to additional requirements when travelling to mainland China.[75]

United Kingdom

British Nationals (Overseas) are subject to immigration controls and have neither the right of abode nor right to work in the United Kingdom.[31] They are ineligible for the Registered Traveller service, which enables expedited clearance through British immigration, despite the eligibility of Hong Kong Special Administrative Region passport holders.[76] Like other non-European Economic Area citizens, BN(O)s are also required to pay an immigration health surcharge to access National Health Service benefits when residing in the UK for longer than six months[77] and do not qualify for most welfare programmes.[78]

Hong Kong

While registration for BN(O) status was dependent on residency, it is possible for holders of this status to lose the right of abode in Hong Kong. Non-Chinese nationals who hold permanent residency or citizenship outside of Hong Kong and have not returned to the territory for more than three years at any time since the transfer of sovereignty automatically lose the right of abode.[79] However, these individuals acquire the right to land, which is identical to the right of abode except that these persons can be subject to a deportation order. BN(O)s subject to a deportation order would lose the right to land and would become effectively stateless if their permanent residency in another country were to lapse or expire.[80]

China

The vast majority of British Nationals (Overseas) are of Chinese descent and were automatically granted Chinese nationality at the transfer of sovereignty. Individuals who hold Chinese nationality concurrently with any other nationality, including BN(O) status, are treated solely as Chinese nationals under Chinese nationality law. Consequently, most BN(O)s do not have access to British consular protection while in Hong Kong, Macau, or mainland China.[37] Additionally, BN(O)s who are Chinese nationals must use a Mainland Travel Permit to enter mainland China.[75]

European Union

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens were European Union citizens.[81] British Nationals (Overseas) have never been EU citizens and did not enjoy freedom of movement in other EU countries. They were,[82] and continue to be, exempted from obtaining visas when visiting the Schengen Area.[81]

References


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Sources

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Parliamentary debates
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