Hong Kong's Legal System: British Influence And Legacy

The United Kingdom's nationality law is closely tied to its imperial history and the rights of its citizens have often been narrowed to exclude those from countries it colonised. British law has had a significant influence on Hong Kong, which was a British colony from 1841 to 1941 and again from 1945 to 1997. The UK's relationship with Hong Kong is underpinned by commercial interests and its obligations as a signatory of the Sino-British Joint Declaration, which handed sovereignty of Hong Kong to China. The UK also supports Hong Kong's mini-constitution, the Basic Law, and its one country, two systems principle.

British Nationality Law and (De)colonisation

British nationality law as it pertains to Hong Kong has changed over time since it became a British colony in 1842. The British Nationality and Status of Aliens Act 1914, which came into force on 1 January 1915, codified for the first time the law relating to British nationality. It set into law how people associated with Hong Kong – as part of "His Majesty's dominions" – would acquire British subject status.

In 1946, the Canadian parliament passed the Canadian Citizenship Act, which established a separate Canadian citizenship. In response, a Commonwealth conference met in London in 1947, where it was agreed that each of the Commonwealth member states would be free to legislate for its own citizenship, while still retaining elements of a common Commonwealth citizenship.

The British Nationality Act 1948 provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of British subjects who had a close relationship (either through birth or descent) with the United Kingdom and its remaining colonies. The Act came into force on 1 January 1949 and stipulated that anyone born in "United Kingdom or a colony" on or after that date was a CUKC.

Until 1962, all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. Anticipating immigration waves from former and current colonies in Africa and Asia with the decolonisation of the 1960s, the United Kingdom passed the Commonwealth Immigrants Act 1962 to tighten immigration control for Commonwealth nationals into the United Kingdom.

The Immigration Act 1971 introduced the concept of patriality, by which only British subjects with sufficiently strong links to the British Isles (i.e. the United Kingdom, the Channel Islands and the Isle of Man) had the right of abode, the right to live and work in the United Kingdom and Islands.

The British Nationality Act 1981 created new categories of British nationality and renamed British colonial territories. After implementation, all British Crown colonies became British Dependent Territories. The Act abolished the status of CUKC, and replaced it with three new categories of nationality on 1 January 1983: British Citizen (for residents of the UK and the Crown dependencies); British Dependent Territories Citizen (BDTC) (for the Crown colonies); and British Overseas Citizen (BOC) (a class of non-inheritable nationality for those who are unable to become a British Citizen, a BDTC or a national of another country).

The Hong Kong Act 1985 created an additional category of British nationality known as British National (Overseas) or BN(O). This new category was available only to Hong Kong BDTCs, and any Hong Kong BDTC who wished to do so would be able to acquire the status of BN(O). The status was non-transferable and available only by application, and the deadline to apply was 30 June 1997.

The Hong Kong Basic Law, which is a law passed by the Chinese National People's Congress, came into effect in 1997, becoming the constitutional document in Hong Kong. The law was passed in accordance with Article 31 of the Chinese Constitution, which authorized the establishment of Special Administrative Regions. The Basic Law sets out the status of Hong Kong as a Special Administrative Region of the PRC, the one country, two systems principle, the political structure of Hong Kong, and the rights of duties of Hong Kong residents.

The Sino-British Joint Declaration

The Joint Declaration established that Hong Kong would become a Special Administrative Region (SAR) under the direct authority of the People's Republic of China, enjoying a "high degree of autonomy" with its social, economic, and legal systems remaining unchanged for 50 years. The region's capitalist economy and civil liberties, such as freedom of speech, assembly, and religion, would be protected during this period. Hong Kong would also maintain its separate customs territory status, with the free flow of capital, and its regional currency, the Hong Kong dollar.

The treaty included four annexes: Annex I elaborated on the Chinese government's basic policies for Hong Kong, providing a framework for the post-handover government; Annex II concerned the establishment of the Sino-British Joint Liaison Group to facilitate dialogue and ensure a smooth transition of government; Annex III addressed the validity of land leases granted by the colonial Hong Kong government; and the memoranda outlined transitional nationality arrangements for local residents, including the creation of the British National (Overseas) status.

The Joint Declaration came into force on 27 May 1985 and was registered at the United Nations by both governments on 12 June 1985. While the UK maintains that the declaration remains a legally binding treaty, China has stated since 2014 that it considers the treaty spent with no further legal effect. Disputes over the implementation of the declaration and Hong Kong's autonomy have continued, with the UK declaring China to be in a "state of ongoing non-compliance" following the imposition of national security legislation in Hong Kong in 2020.

British National (Overseas) Status

The Hong Kong Act 1985 created the British National (Overseas) status to fulfil the requirement of a new nationality for Hongkongers that did not confer the right of abode in the United Kingdom. All BDTCs who did not have a connection with a remaining British Dependent Territory other than Hong Kong lost their BDTC status on the day of the transfer in 1997. Ethnic Chinese Hongkongers became Chinese nationals and could only retain British nationality if they had registered as BN(O)s before the handover. Residents who were not ethnically Chinese, had not registered as BN(O)s, and would have been stateless on that date automatically became British Overseas citizens.

Registration for BN(O) status was limited to the 10-year period preceding the transfer as a transitional arrangement for former BDTCs; current residents cannot newly acquire this nationality. To qualify for BN(O) status, a person had to be a British Dependent Territories citizen by connection with Hong Kong. Those who did not register for BN(O) status and had no other nationality or citizenship on 30 June 1997 automatically became British Overseas Citizens on 1 July 1997.

The final deadline for registration for most people was 1 July 1997, though for some it was extended to 31 December 1997. BN(O) status thus belongs to a closed and declining group. Anyone who missed the deadline cannot retrospectively apply for this type of nationality status, even if they would have been eligible at the time.

BN(O)s are British nationals and Commonwealth citizens, but not British citizens. They are subject to immigration controls when entering the United Kingdom and do not have an automatic right of abode there or in Hong Kong. However, all BN(O)s would have had permanent resident status in Hong Kong when they acquired this nationality. They are entitled to hold a British passport and have the right to seek consular assistance and protection from UK diplomatic posts abroad.

Since 31 January 2021, BN(O)s and their dependent family members have been able to apply for a British National (Overseas) visa, a residence permit that allows them to live, work and study in the UK. After five years, they may apply for settled status and, following that, they can apply for citizenship after holding settled status for 12 months.

BN(O) status can be relinquished by making a declaration to the Home Secretary, provided that the declarant 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. There is no path to restore BN(O) status once lost.

The Hong Kong Basic Law

The Basic Law is composed of nine chapters, 160 articles, and three annexes. It lays out the sources of law, the relationship between Hong Kong and the Central Government, the fundamental rights and duties of Hong Kong residents, and the branches of local government. It guarantees Hong Kong a high degree of autonomy, with the exception of foreign affairs and defence, which remain under the purview of the Central People's Government.

The Basic Law provides that the common law system shall be maintained in Hong Kong. It sets out the status of Hong Kong as an HKSAR of the People's Republic of China, the "one country, two systems" principle, the political structure of Hong Kong, and the rights and duties of Hong Kong residents. The law also includes provisions that offer protection for human rights, such as freedom of assembly and freedom of speech, which do not exist in mainland China.

The Basic Law can be interpreted by Hong Kong courts in the course of adjudication and by the Standing Committee of the National People's Congress (NPCSC). The courts of Hong Kong are given the power to review acts of the executive or legislature and declare them invalid if they are inconsistent with the Basic Law. However, the NPCSC holds the ultimate "power of interpretation" and has the sole power to amend the Basic Law.

Bilateral agreements

Hong Kong and the UK are parties to several bilateral agreements, as permitted by Articles 151, 153 and 155 of the Hong Kong Basic Law. These include:

• Air services agreement
• Investment Promotion and Protection Agreement
• Mutual Legal Assistance Agreement
• Surrender of Fugitive Offenders and Transfer of Sentenced People Agreements
• Double Taxation Avoidance Agreement

Hong Kong institutions retain full and associate memberships in Association of Commonwealth Universities and other appropriate organisations under the Commonwealth Foundation umbrella.

The UK and Hong Kong are also both full members of the FATF and World Trade Organization.

The UK has substantial commercial interests in Hong Kong, with over 300 UK-based companies having regional headquarters or offices in the territory. The book value of investment in 2011 was more than £33 billion, and the UK exported more than £5 billion in goods, a 20.5% increase on the previous year.

Hong Kong is also home to roughly 2.9 million British Nationals (Overseas), 350,000 of whom hold an active British passport.

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