What is a BN(O) and what is the route to British citizenship?
In light of the Secretary of States decision to offer five years residence to British National (Overseas) passport holders OTS Solicitors sets out the three existing routes to British citizenship open to BN(O)s. These will make important reading to BN(O)s who want to obtain British citizenship after five years residence and one year of settlement. Please note that this article covers the existing law and does not take into account any revisions which may be put in place once the details of the BN(O) scheme are published.
British Nationality solicitors
If you have questions about Hong Kong to UK immigration options or settlement in the UK and British nationality then the Immigration and British citizenship solicitors at OTS Solicitors can help you. Call the friendly and expert British citizenship team at OTS Solicitors on 0203 959 9123 or contact us online
What is a BN(O)
This category came into existence on 1 July 1987. An enabling provision was contained in paragraph 2 of the Schedule to the Hong Kong Act 1985, and the Order made under that paragraph was the Hong Kong (British nationality) Order 1986. Under this Order, provision was made for BDTCs from Hong Kong to register as BN(O) on application. No provision was made for BN(O) status to be acquired after the initial application period ended in 1997, nor for it to be transmitted.
BN(O)s have access to British citizenship via the following provisions: BNA 1981 s 4 (as in force from 1 January 1983), s 4B (as amended on 13 January 2010) and the general discretion to register minors (s 3(1)).
Registration by entitlement based on UK residence, and discretionary registration based on service under the government of a British overseas territory.
A 'British national' has a right to register as a British citizen under s 4(2) of the 1981 Act upon satisfying various requirements (detailed below). This provision applies to British overseas territories citizens (BOTCs), British Overseas citizens (BOCs), British subjects under the Act, British Protected Persons (BPPs) and, as of 1 July 1987, British Nationals (Overseas) (BN(O)s).
The requirements to be satisfied are:
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that the applicant was in the UK on the first day of a five-year period ending with the date of application and that, during that period, he was not in breach of the Immigration laws and was not absent for more than 450 days, not more than 90 of those 450 falling during the final 12 months; and
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that, throughout the final 12 months, he was not subject to any restriction on the period for which he might remain in the UK.
There is no statutory requirement to be in the UK on the date of application; one may be abroad, but this will affect the authority to which the application is submitted.
If the applicant was outside the UK for more than a total of 450 days during the five years, or for more than 90 days during the final 12 months, the Secretary of State has the power to overlook the excess if special circumstances apply. Similarly, the Secretary of State has the power to disregard the fact that the applicant was at any stage in the UK in breach of the Immigration laws, or that the applicant was only without time restrictions in the UK at the end of the five-year period, rather than for all of the last year.
The unwaivable requirements are, first, lawful presence in the UK at the start of the five years and, second, no time restrictions by the end of it.
The Nationality Instructions contain the policy as to when the discretion available to the Secretary of State may be exercised. The normal expectation is that residents will meet the residence requirements, on the basis that the purpose of the requirements is to show close links with and commitment to the UK. The NIs state that the discretion is not normally exercised in a way that would, without good reason, depart from the objectives set out therein. In respect of excess absences in the five-year qualifying period, excess absences in the final year, time restrictions in the year prior to the application date, and breaches of the Immigration laws during the five-year qualifying period, the policy as to the exercise of discretion is essentially the same as that applied where an adult applies for naturalisation under s 6(1) of the 1981 Act, although, in the applicable parts of the NIs for naturalisation under s 6(1) and for registration under s 4(2), the policy is presented slightly differently.
In respect of an application for registration made on or after 4 December 2006, the Secretary of State will only grant an application by an adult or young person (ie age ten or over when the application is made) where satisfied that he or she is of good character.
Registration under s 4(2) confers British citizenship otherwise than by descent.
So, 'British nationals' who did not become British citizens at the commencement of the 1981 Act have not had to naturalise like aliens or citizens of Commonwealth countries, but are entitled to register. To avail themselves of this opportunity, though, such persons have to enter the UK in the first place, and as BOTCs, BOCs, British subjects (except those British subjects who have the right of abode or are Irish citizens), BPPs and BN(O)s do not have the right to do so, their entry would have to be in accordance with the Immigration Rules of the day or, if not, in particular cases, leave to remain would have to have been given outside the Immigration Rules.
An alternative to all the above requirements is if the applicant has at any time been in Crown service under the government of a British overseas territory, or service (paid or unpaid) with a body in a British overseas territory, the members of which are appointed by or on behalf of the Crown. The Secretary of State has the power to register such a person if, in his opinion, special circumstances permit. Not surprisingly, there were many applications under this provision from persons in Crown service in Hong Kong as 1997 approached, but it is understood the discretion was exercised very sparingly indeed.
Applicants had to be resident in Hong Kong and have served under the government of Hong Kong, for example serving in the Hong Kong Volunteer Defence Corps.The words 'at any time' mean the provision may still be applied, in principle, to Hong Kong's former colonial civil servants. However, reg 4(2) of the British nationality (General) Regulations 2003 provides that an application under s 4(5) of the 1981 Act must be made to the Governor of the territory in question. As Hong Kong no longer has a (British) Governor, having reverted to China on 1 July 1997, it might be said that no application may be made under those regulations, though the exercise of the right to apply should not be frustrated by the lack of a procedure.
The Nationality Instructions contain the policy as to when the discretion available to the Secretary of State may be exercised. The intention of s 4(5) is said to be to recognise the position of those who serve the Crown in a British overseas territory 'in a particularly deserving way'. The policy is that the discretion is to be used to enable persons who come to live in the UK to be registered as British citizens before completing five years' residence, and in cases where 'such particularly deserving service has been rendered to the Crown under the government of a British overseas territory that it would be appropriate to grant British Citizenship without insisting on previous residence' in the UK.
The NIs state that the discretion is to be used sparingly and that each application must be considered on its merits and in accordance with all the following criteria: quality of service (specified as the most important criterion), connections with the UK, rank, loyalty and length of service. In respect of quality of service, the main criterion is that the applicant must have played such a crucial part in the government of an overseas territory 'that the service could be recognised as benefiting the United Kingdom itself'.
The NIs state that service of significant benefit to a British overseas territory could be in executive, legislative or statutory bodies, education boards, trade advisory bodies, military bodies and so on. The applicant must also be able to show connections or close ties with the UK, which might include (in order of importance): UK born ancestors, close relatives who are British citizens, previous service (such as in the armed forces during war or conflict or while on active service), payment of UK income tax, education in the UK, education of children in the UK, or close relatives living here. In respect of rank, the more senior the applicant, the more likely it will be that the service requirement is met, although particularly deserving service from a person in a junior post may suffice.
In respect of loyalty, the policy is that an applicant whose loyalty is in doubt should normally be refused. Unquestioned loyalty should not be regarded as highly as loyalty that has been tested and demonstrated. In respect of length of service, long service is not a pre-requisite for registration. The NIs state that the most important factor is the quality of the service. However, an applicant would normally be expected to have completed at least ten years' service.
In respect of an application for registration made on or after 4 December 2006, the Secretary of State will only grant such an application by an adult or young person (ie age ten or over when the application is made) where satisfied that he or she is of good character.
Registration under s 4(5) confers British citizenship otherwise than by descent.
Registration of 'British nationals' without any other citizenship or nationality: BNA 1981, s 4B
The Nationality, Immigration and Asylum Act 2002, s 12 inserted a new section – s 4B – into BNA 1981. Section 4B as originally enacted made provision for BOCs, British subjects, and BPPs but not BN(O)s. These British nationals (excluding BN(O)s) with no other nationality or citizenship were given an entitlement, as of 30 April 2003, to be registered on application as British citizens so long as they did not, after 4 July 2002, make themselves otherwise stateless (ie renounce, voluntarily relinquish or lose through action or inaction any other nationality or citizenship). The date of 4 July 2002 was the date on which the government decided in principle to adopt an opposition amendment which was the precursor of s 4B.
It happened in this way. On 5 March 2002, the quota voucher scheme was abolished suddenly, unexpectedly and without consultation or anything to take its place. Much lobbying ensued – the Immigration Law Practitioners' Association (ILPA) took the opportunity of NIAA 2002 (as a Bill in passage at the time) to draft an opposition amendment extending British Citizenship to those who lost out as a result of the abolition of the voucher scheme.
On 24 April 2002, the Secretary of State for the Home Department, David Blunkett, stated in Parliament that he would consider some sort of replacement for the scheme. This came when, in the course of the Bill's Second Reading, he was interrupted by Fiona Mactaggart MP:
Fiona Mactaggart (Slough)
"I thank my right hon. Friend for giving way. I welcome what he said about inclusivity of citizenship, but there is one aspect of citizenship that is not dealt with in the Bill—the position of British overseas citizens who were able to come to this country under the quota voucher scheme. Will he take action to ensure that British overseas citizens who have no other citizenship will be able to enter and stay in the country of their nationality?"
Mr Blunkett
"I know and respect my hon. Friend's interest in the matter and the way in which she has campaigned on it for as long as I can remember. It is important that we get it right. In recognition of the fact that the old special quota scheme had ceased to be used for the purpose for which it was originally designed, we abolished it. I will examine the possibility of an alternative arrangement for British overseas citizens who have no other nationality but who, under the existing complex historical circumstances, cannot enter the country. It would be right for us to do that, as we have a moral obligation to them going back a long way, and it is unfinished business.
That relates to the point that I was making. The people to whom my hon. Friend referred have a deep commitment to this country and a heritage linked with it. Those who seek naturalisation and who want to be part of our community will welcome the measures that I am announcing in part 1".
On 4 July 2002, the Home Office Minister, Beverley Hughes, gave a commitment to Fiona Mactaggart MP to allow BOCs with no other nationality to register as British citizens. The Minister stated that she was doing that to address the situation which left the people concerned with no right of abode in any country. This was the announcement whereby the government effectively adopted the substance of the proposed amendment for which ILPA had been lobbying. Section 4B when originally enacted was therefore a step taken following the abolition of the special voucher scheme on 5 March 2002, but not a step that was foreseen and intended at the time of abolition.
As noted above, on enactment s 4B was extended to all the remaining forms of secondary British nationality, but not BN(O) status, even though it was a measure designed to alleviate the de facto or functional statelessness of classes of British nationals.
Generally, BN(O) status could only be obtained on application by BDTCs (who had that status by virtue of a connection with Hong Kong) before 1 July 1997, which was the date of the cessation of British rule in Hong Kong – see 'Hong Kong' in Part III, Section B. All Hong Kong BDTCs ceased to be BDTCs on 1 July 1997. Those who did not register as BN(O)s by that date and who were otherwise stateless became BOCs by operation of law.
Although the majority of Hong Kong BDTCs were ethnically Chinese and therefore generally regarded by China as Chinese nationals, non-Chinese ethnic minorities, otherwise stateless, either became BN(Os) on application prior to 1 July 1997 or become BOCs by operation of law on that date. Under s 4B of the 1981 Act, as originally enacted, stateless BOCs became entitled to register as British citizens, but not so stateless BN(O)s. Some of these Hong Kong stateless were able, subject to satisfaction of an ordinary residence test with respect to Hong Kong, to apply for registration as British citizens under British nationality (Hong Kong) Act 1997, s 1 (again, see 'Hong Kong' in Part III, Section B). However, not all were able to meet this ordinary residence test, and those who did not remained BN(O)s with no other citizenship or nationality.
The situation was remedied some seven years later. Section 44 of the Borders, Citizenship and Immigration Act 2009 (in force from 13 January 2010) amended s 4B of the 1981 Act to allow BN(O)s to register by entitlement as British citizens so long as they have not, after 19 March 2009, made themselves otherwise stateless (ie renounced, voluntarily relinquished or lost through action or inaction any other nationality or citizenship). The date of 19 March 2009 was the date on which a government policy change on this point was announced.
Registration under s 4B confers British Citizenship by descent.
Although s 4B is a provision that alleviates the position of British nationals who are for practical purposes stateless, it operates in such a way as to exclude from its provisions not merely those who after the relevant date (4 July 2002 for BOCs, British subjects and BPPs; 19 March 2009 for BN(O)s) renounce or voluntarily give up any other citizenship or nationality, but also those who lose any other citizenship or nationality through action or inaction.
In respect of loss of citizenship or nationality by action, an example may illustrate its operation. Under the law of another country, dual nationality may be prohibited and the action of applying for a UK passport (eg as a BOC) may automatically deprive a person of the nationality of that country. In such a circumstance, that person will, BOC status aside, be stateless. But, if the application for that UK passport as a BOC was made after 4 July 2002, he will not be eligible for registration as a British citizen under s 4B (as the nationality of the other country will have been lost by action). In Shah v Secretary of State for the Home Department, a dual national Indian citizen/BOC was wrongly refused a BOC passport prior to the relevant date (4 July 2002) and the refusal was not challenged at that time.
It was subsequently accepted that, had the appellant been issued with a BOC passport at that time, by that fact, he would have lost his Indian citizenship and thereafter would have been entitled to registration under s 4B (on commencement of that provision). The Court of Appeal dismissed an appeal in an application for judicial review on account of delay, but it also stated that no practical relief could have resulted as, by the time of the appeal, the grant of a BOC passport would have the effect of depriving the appellant of his Indian citizenship but would occur after the relevant date so precluding an application under s 4B.
In respect of loss of citizenship or nationality by inaction, this would occur, for example, where the law of another country permits dual nationality while a person is a minor but not as an adult, and it is provided that a dual national minor on reaching the age of majority must renounce his other nationality (eg British overseas citizenship) or through inaction will cease to be a citizen/national of that country. Where such loss (eg by a dual BOC/Kenyan) occurs after 4 July 2002, the person concerned is a BOC who is otherwise stateless but will not be eligible for registration as a British citizen under s 4B (as the nationality of the other country will have been lost by inaction).
It is critical to ascertain whether or not action was taken or inaction occurred after the relevant date, and to have clear evidence of the operation of foreign law in the country concerned. As the Nationality Instructions indicate, the Secretary of State has an awareness of the operation of nationality law in some foreign and Commonwealth countries, and will make further enquiries as appropriate.
Regarding the burden of proof, the language of s 4B(2) suggests that applicants must satisfy the Secretary of State that they are stateless (but for their secondary British nationality). This appears to be consistent with the decision in R v Secretary of State for the Home Department, ex p Bradshaw [1994] Imm AR 359 (CS). In line with this, the Nationality Instructions, Volume 1, in respect of statelessness for the purposes of BNA 1981, s 4B provide, in Annex D to Chapter 12:
Applicants are requested to supply statements from the authorities of the country or countries concerned confirming that they do not have its/their citizenship or nationality.
Even then, Annex D adds: 'Such letters of confirmation should not be taken at face value if they appear to contradict any information we hold about the citizenship laws of the countries concerned'.
This approach to statelessness in the s 4B context is consistent with the general policy as regards establishing statelessness in the context of the British nationality (Hong Kong) Act 1997: see the Nationality Instructions, Chapter 14, Annex D and the related discussion in the 'Hong Kong' entry in Part III, Section B of this book. In short, the general policy in that context is that, where there are grounds for believing the applicant may have another nationality, that applicant will be expected to obtain a 'letter of confirmation' from the state concerned that the applicant did not possess its nationality on the relevant date.
The standard of proof is a simple balance of probabilities.
In practice, it is problematic for applicants to have to prove a negative, and deal with foreign bureaucracies (seeking 'letters of confirmation') in the process. Additionally, applicants have been hindered by the Secretary of State forming entrenched but erroneous (or arguably erroneous) conclusions as to the content and application of the nationality/citizenship laws of other countries. As is apparent from the above extract from Annex D to Chapter 12 of the NIs, the Secretary of State holds information about the nationality laws of the countries with which applicants under BNA 1981, s 4B (and the British nationality (Hong Kong) Act 1997, for that matter) most commonly have connections. In the 'Hong Kong' entry in Part III, it is explained in the context of the British nationality (Hong Kong) Act 1997 that, after long campaigns, the Secretary of State has acknowledged being wrong about the application of Indian and Nepalese nationality laws and, therefore, being wrong in refusing applications under the 1997 Act.
Accordingly, where the Secretary of State takes a particular position as to the nationality laws of another country and consequently refuses a s 4B applicant on the ground that he or she is not otherwise stateless, it is to be recalled that, when British nationality laws are being applied by the Secretary of State and British courts and the process involves the law of another sovereign state, the law of that other state is a question of fact, to be established on the evidence. The Secretary of State's evidence may be bettered by the applicant's evidence (including expert evidence from lawyers etc qualified in the country concerned).
Finally, in respect of loss of nationality or citizenship, the deprivation of nationality or a declaration of nullity does not fall within the definition of loss for the purpose of s 4B. Further, where a person (eg a BOC) has no other nationality but can readily acquire one, it is suggested that this cannot constitute renunciation, voluntarily relinquishment or loss through action or inaction of the other nationality. One must first have a citizenship or nationality before it can be renounced, relinquished or lost.
Discretionary registration of minors under BNA 1981, s 3(1)
On the eve of the commencement of BNA 1981, the general approach of the law was to specify requirements to be satisfied by adults seeking British nationality by grant, but to exercise a broad discretion in respect of minors. This approach was retained by the 1981 Act.
While a complex of provisions offer naturalisations and registrations on terms, s 3(1) gives the Secretary of State a broad, non-specific discretion to register minors. The power is to register a 'person' as a British citizen if he was a minor still at the date of application, hence it does not matter if an applicant turns 18 after the application is made.
Section 3(1) is completely silent with respect to the circumstances in which it might be applied. It is for the Secretary of State to devise his own policies as to when he will normally exercise the discretion and, even where an application falls outside their scope, the Secretary of State may exceptionally choose to grant it. The current policy as to the exercise of the discretion is set out in the Nationality Instructions.
In respect of an application for registration made on or after 4 December 2006, the Secretary of State will only grant an application by an adult or young person (ie age ten or over when the application is made) where satisfied that he or she is of good character.
British Nationality solicitors
If you have questions about Hong Kong to UK immigration options or settlement in the UK and British nationality then the Immigration and British citizenship solicitors at OTS Solicitors can help you. Call the friendly and expert British citizenship team at OTS Solicitors on 0203 959 9123 or contact us online