Translated Summary Of The Speech Delivered By Mr Lu Ping, Director Of Hong Kong & Macao Office, On The Question of Hong Kong Resident’s Nationality And Right Of Abode At Towards 1997 and Beyond Hong Kong Economic Development Conference

JOINTLY ORGANISED BY THE BETTER HONG KONG FOUNDATION AND THE HONG KONG TRADE DEVELOPMENT COUNCIL ON APRIL 12, 1996

The Preparatory Committee for the Hong Kong Special Administrative Region (HKSAR) passed a proposal at its second plenary session last month. The proposal calls on the National People’s Congress Standing Committee (of the People’s Republic of China) to provide an interpretation on the practical implementation of the Chinese Nationality Law in Hong Kong.

The proposal by the Preparatory Committee includes the followings: those Hong Kong residents who are of Chinese descent; born in Chinese territory (including Hong Kong) and others who satisfy the requirements laid down by “the Nationality Law of People’s Republic of China” to be eligible for Chinese nationality, they are all Chinese nationals. Within this group, those who possess foreign passports are viewed as “HKSAR Chinese nationals who have overseas right of abode”. They can use documents issued by foreign governments to travel to other countries or places. However, they will not be entitled to consular protection in HKSAR and other parts of PRC. Nevertheless, in consideration of the fact that some of these people may want to keep their status as foreign nationals, the Preparatory Committee further proposed that when HKSAR Chinese nationals experience a change of nationality, they can make a declaration with valid documentation to the appropriate authority responsible for nationality applications. For this purpose, the Preparatory Committee also proposed that the SAR government be authorised to make the SAR Immigration Department the designated authority to handle nationality applications. Further authorisation is also given to the SAR Immigration Department to act according to the PRC Nationality Law and related regulations for handling all matters relating to nationality applications. The proposal not only effectively resolves issue of Hong Kong residents’ nationality but also the issue of right of abode.

One crucial point in the Preparatory Committee’s proposal is that: if a person who is of Chinese descent and is borne in Chinese territory, that person is considered a Chinese national. The proposal made by the Preparatory Committee is in accordance with the principle of the Chinese Nationality Law, which focuses mainly on descent and is complimented by specific situations at the place of birth.

The first provision of the Preparatory Committee’s proposal is that those who are of Chinese descent and born in Chinese territory are Chinese nationals. The fifth provision of the proposal is that Hong Kong Chinese nationals who experience a nationality change can make a declaration to the appropriate authority responsible for nationality application. This in reality provides a flexible interpretation to situations under which Chinese nationality will be automatically lost and offers an alternative for Hong Kong people who have obtained foreign passports to effect a nationality change. They can according to their needs make a declaration and choose to reside in Hong Kong as foreign nationals. Or they can choose not to make a declaration and continue to live in Hong Kong as Chinese nationals.

However, as the Chinese government does not recognise the ‘BDTC’ status, and also the British national status obtained through the BNSS, those who possess ‘BDTC passports’, the BN(O) passports” or British passports obtained through the BNSS, cannot declare a nationality change as a result of that.

To facilitate ease of travel for Hong Kong people, the Preparatory Committee also proposed that “HKSAR Chinese nationals who have right of abode overseas can use documents issued by foreign governments for travel to other countries or places. However, in HKSAR and other PRC territories, these people cannot enjoy consular protection by virtue of holding those documents. This flexible and practical policy is adopted specifically for allowing Hong Kong residents to travel conveniently without contravening the basic principle under the Chinese Nationality Law that dual nationality is not recognised.

The above proposal by the Preparatory Committee is in accordance with the principle of international law and practice. As for consular protection to be enjoyed by Hong Kong Chinese nationals holding foreign passports at a third travelling country, according to international principle and practice, Chinese overseas ambassadors and consulates can relay the request for consular protection on behalf of Chinese nationals to the governments where they are represented. However, as it is at the territory of other countries, any country who wants to implement governing by place of blood is subject to the consent of that country. Whether consular protection can be obtained in practice or from which country can be provided is primarily subject to interpretation by the third country with regard to the person’s nationality.

The proposal by the Preparatory Committee concerning the implementation of the Chinese Nationality Law helps clear the puzzlement on Hong Kong residents’ right of abode. Under the Basic Law, eligibility for right of abode in Hong Kong depends on the different nationality status of Chinese nationals and non Chinese nationals. The Preparatory Committee’s proposal clarifies who are Chinese nationals and who are non Chinese nationals. This enables people to find the answers according to their own nationality status and the Basic Law requirements.