5 June, 2020
1. China’s Parliament - the National People’s Congress - has approved a proposal to impose a new National Security law for Hong Kong. In response, the UK government said, on 29 May, that if China ‘continued down this path’, it would offer 350,000 British National (Overseas) - BNO - passport holders in the territory a ‘pathway to future UK citizenship’. The number of people who may eventually secure a right to this, under such proposals, is up to three million (in addition, possibly, to a significant number of dependants).
2. Unveiling this proposal on 29 May, the Foreign Secretary, Dominic Raab, said:
If China continues down this path and implements this national security legislation, we will remove that six month limit [allowing BNOs to come for visa-free visits] and allow BNO passport holders to come to the UK and to apply to work and study for extendable periods of 12 months and that will itself provide a pathway to future citizenship.
(See media report).
3. Mr Raab repeated this announcement in the House of Commons on 2 June 2020, suggesting that these ‘new arrangements’ would be put in place to honour the UK’s ‘historical responsibilities’. As this paper argues from paragraph 5 below, the government’s reasons for making this offer fall apart upon examination.
4. A Home Office factsheet confirmed that the number who might eventually be able to come is up to 2.9 million - the current number of BNOs residing in Hong Kong. Whether they would secure the right would depend upon whether BNOs wish or are able to renew their BNO passport. The BNO passport is not hereditary but children of passport holders may be accepted in the UK as the Foreign Secretary has made clear in Parliament. Quizzed in the House of Commons whether families would be included in this scheme, Mr Raab responded: “Of course, dependants would be considered.”
5. Mr Raab has cast the proposed offer of a pathway to citizenship as part and parcel with the UK honouring its ‘historical responsibilities’. Similarly, in an interview with Conservative Home on 2 June, Leader of the House of Commons Jacob Rees Mogg presented a similar rationale. He said: “As you may know I lived in Hong Kong for a few years and Hong Kong was British and these people were given a type of British passport and it is right that we honour our historic commitments.”
6. It can be argued that the UK retains a degree of responsibility for Hong Kong as a former colonial power between the 1840s and 1997. However, there has been disagreement about whether an offer of a path to UK citizenship for BNOs would be consistent with the terms of the Memorandum on Nationality that accompanied the 1984 Sino-British Joint Declaration. In a 2008 review, the former Attorney General Lord Goldsmith stated that the Foreign Office advised him that offering existing BNOs the right to gain full citizenship 'would be a breach of [the Joint Declaration]'. In February 2020, however, Lord Goldsmith stated his 'view that the UK government can extend full right of abode to BNO passport holders without breaching its side of the Sino-British Joint Declaration'.
7. The government may be operating under the assumption that - were China finally to signal its premature renunciation of the terms of the Joint Declaration - then Britain would no longer be obliged to operate under its terms either. This interpretation is strengthened by Mr Raab’s statement of 2 June: “We regard this as part of the package that went with the Joint Declaration. If that is upended because of action on the national security legislation, it is only right that we should rethink the position of BNO passport holders.”
8. The reference by Mr Rees Mogg and Mr Raab to the UK’s ‘historical responsibilities’ or ‘commitments’ appears to refer to what some believe are the UK’s duties to inhabitants of former British overseas territories. An example often cited is the 1972 situation in which the UK offered asylum to some 30,000 Ugandan Asians with British Overseas passports (in fact, the holders of these passports were citizens of the United Kingdom and Colonies but without the right of abode) after the then-military ruler Idi Amin ordered Asians to leave Uganda. As BBC News has put it: “At the time some MPs said India should take responsibility for the refugees, but Prime Minister Edward Heath said the UK had a duty to accept them.”
9. The clear difference with the case of the Ugandan Asians is that residents of Hong Kong are not being threatened with expulsion by China. The idea that Britain has a historical responsibility to provide a pathway to UK citizenship for residents of former colonies, contingent upon the behaviour of the successor government, appears to be belied by immigration statute - including the Commonwealth Immigrants Act 1962 - which specified that all Commonwealth citizens, including citizens of the UK and Colonies without a relevant connection to the UK, were subject to immigration control. Provisions were subsequently tightened and refined by both the Immigration Act 1971 and the British Nationality Act 1981.
10. Interpreting ‘historical responsibilities’ in such a way implies that the UK would now need to extend a path to citizenship to residents of all former colonies contingent on the behaviour of successor regimes. This is clearly untenable and would be an unwise precedent to set. Must similar routes now be proposed for groups of people in India, Pakistan, Sri Lanka, Nepal, Nigeria, Zimbabwe, South Africa, Myanmar, Belize, Jamaica, British Guiana and Papua New Guinea depending upon the behaviour of their respective current governments?
11. Nor is opening our borders even more, at a time when non-EU arrivals have been the highest ever, likely to have any salutary effect on Chinese actions. Such a move will hardly deter Beijing from establishing full control over Hong Kong, if that is the intention. However, it might well pull the rug from under the feet of the democratic opposition at a critical point in their struggle. As one MP put it in Parliament on 2 June: “Is there not a danger that  is actually exactly what Beijing wants?”
12. Meanwhile, any attempt to compare the situation with the 2018 Windrush Affair does not hold up. It is true that the British Nationality Act 1948 granted UK citizenship to nationals of Commonwealth countries. However, as the Windrush affair illustrated, those who were born in Commonwealth countries who acquired the right to remain in the UK indefinitely under the terms of the Immigration Act 1971 were required to have settled in the UK before 1973. In contrast, the 2.9 million BNO residents of Hong Kong are not settled in the UK and do not legally possess any right to settle in the UK.
13. As Migration Watch UK co-founder and President Lord Green of Deddington pointed out in a recent letter that was published in The Times, the three million people to whom these proposals might eventually apply is a number that is 100 times the 30,000 Ugandan Asians who came here from 1972 onwards.
14. However, as an illustration of the pressure that the government is under to go even further, the Liberal Democrats have tabled a Bill that would re-open BNO passports to all Hong Kong citizens and extend the scheme to include the immediate “right of abode”, potentially encompassing seven million people (link).
15. As the Prime Minister has said, these proposals would ‘amount to one of the biggest changes in our visa system in history’. The social and practical consequences would be enormous as we recover from Covid-19. As for Britain, three million is nearly three times the population of Birmingham, and 11 times the annual net inflow of migrants which is already very high indeed. The UK is already more than three times as crowded as France, and 64% of the public think the population is rising too rapidly (YouGov). Last month, official estimates found non-EU immigration in 2019 to already be at the highest level ever, and overall immigration to be the second highest since records began. This move risks further increasing the numbers significantly - making it ever more likely that the government will break the Conservative Party’s election manifesto pledge that overall immigration ‘will come down’.
There are about 2.9 million BNOs currently in Hong Kong (Home Office factsheet) of whom about 350,000 held BNO passports as of February 2020. The table below shows the increase in the number in circulation from 2015 to 2019. More than 145,000 passports were renewed as tensions with China worsened during the most recent year (see table below). Separate figures suggest that, between December 2019 and February 2020, the number of people with such passports increased by 35,102 to 349,881 (Home Office factsheet, May 2020).
Table A: BNO passports in circulation, 2015 to 2019 (Parliamentary Answer, March 2020).
|Year||Nationality Description||Number of passports (Volume)|
|31-Dec-15||British National (Overseas)||143,219|
|31-Dec-16||British National (Overseas)||152,351|
|31-Dec-17||British National (Overseas)||158,107|
|31-Dec-18||British National (Overseas)||169,653|
|31-Dec-19||British National (Overseas)||314,779|