The United Kingdom has given hope to millions of Hong Kongers afraid of an impending Chinese crackdown on the city’s embattled pro-democracy protest movement by extending visa rights for Hong Kongers holding British Nationals (Overseas) status, known as BNOs. 

Yet, in spite of the gracious nature of the UK’s action, the decision is self-serving and should not cover up the systemic racism that originally deprived the same Hong Kongers and their descendants of the right to live in the UK – a right which they once enjoyed. Nor should the hypocrisy of the decision be ignored, whereby Hong Kongers have been continued to be denied their citizenship rights for a long period of time. A truly reparative act would be to restore British citizenship to every Hong Konger.

STRIPPING HONG KONGERS OF THEIR RIGHTS

Under the 1948 British Nationality Act, a person born in Hong Kong and indeed throughout the British Empire was a British subject with no restriction on his or her right to live and work in the UK. This reflected the longstanding common law position that a person born on British territory was by all measures a British subject. 

However, the fear of mass nonwhite migration in the wake of decolonisation lead to the 1962 Commonwealth Immigrants Act, which introduced immigration controls on the UK’s non-British colonial subjects for the first time. The 1971 Immigration Act went further and introduced the concept of ‘right of abode’ i.e. the right to reside in the UK and withheld this right from Hong Kongers and other colonial subjects.

After the 1984 Sino-British Joint Declaration, which paved the way for Hong Kong’s handover to the People’s Republic of China in 1997, the UK parliament passed the 1985 Hong Kong Act, which created the status of British National (Overseas) or BNO. The status was available to Hong Kongers born before 1997. BNOs have the right to enter the UK and to remain for up to 6 months without a visa. But, BNOs do not have the right to work or access state support, and further cannot rely on British diplomatic protection in either mainland China or Hong Kong. These shortcomings became apparent during the recent protests Hong Kong when young pro-democracy protesters, most of whom were born after 1997, could not access these writes as BNOs cannot pass their status onto their children.

Thus, a people who had been British subjects for 156 years, without representation or consultation, were relegated to second class citizens and then, again without representation or consultation, handed over to a totalitarian regime.

INTERNATIONAL HUMAN RIGHTS ANGLE

The UK government has long argued that giving full citizenship rights to BNOs or other Hong Kongers would breach the Joint Declaration. However, this argument is specious for several reasons.

The first is that the denial of BNOs’ right of abode was not raised in the Joint Declaration but in a memorandum of understanding sent by the UK government to the People’s Republic of China (PRC) on the same day. The memorandum was neither signed nor agreed, and recent legal opinion holds that the memorandum is not binding.

The second is that the PRC’s Foreign Ministry stated that the Joint Declaration is ‘a historical document [that] no longer has any practical significance’. If the PRC refuses to be bound by the Joint Declaration, then why should the UK continue to deny right of abode to BNOs?

The third is that arguably the refusal to allow BNOs to move freely to the UK or to access state support is a breach of articles 12 and 25 respectively of the International Covenant on Civil and Political Rights, which provides that:

“No one shall be arbitrarily deprived of the right to enter his own country”

—Article 6

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”

—Article 25

Further, the refusal to allow BNOs to work in the UK is a breach of article 23 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Economic, Social and Cultural Rights. The former provides that:

“Everyone has the right to work, to free choice of employment…”

THE UK’S CHANGED POSITION

Ahead of the Chinese parliament’s approval of a controversial national security law, which would ban ‘sedition’ and ‘secessionist activities’ in Hong Kong, the UK Foreign Secretary Dominic Raab announced that the current six-month limit on BNOs right to stay in the UK would be extended to twelve months with the possibility of renewal. The move offers a path to citizenship for the 300,000 Hong Kongers who currently hold BNO status, who can now apply to work and study in the UK. The move may also open up a lifeline to the estimated 2.9 million Hong Kongers, who are eligible for BNO status. 

At present, the extension will only benefit those able to find work or afford the prohibitive costs of study in the UK, leaving many of Hong Kong’s poorest and youngest stranded in the city. Those more cynical might argue that the move reflects the UK government’s desire to take only those immigrants who are economically valuable, rather than reflecting a deeper commitment to restoring the rights of overseas British nationals. 

A private members bill, which would have given permanent right of abode to all Hong Kongers passed its first reading in the House of Commons, has been postponed due to the coronavirus pandemic. If the UK truly wishes to abide by its international obligations and to right its historical wrongs, then it would do well to pass this private members bill or alternatively, it will prove those cynical voices true.

Samuel is a trainee solicitor and postgraduate at Cardiff University. He is active in several U.K.-based organisations campaigning on behalf of Hong Kong and BNOs. His research interests include transitional justice and the rule of law.

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