British nationality - children of Indian origin born in Hong Kong

In "What am I, then?" (February 12), Hong Kong-born Nepalese Damar Thapa describes his frustrated efforts to apply for British citizenship - an attempt prompted by our letter "British citizenship" (November 27).

This letter explained that solely Nepalese passport holders born in Hong Kong before June 30, 1976, who have never held a BN(O) passport, can qualify for a British Overseas citizen passport if they did not formally renounce their British nationality before turning 21.

On trying to apply, Mr Thapa discovered that the British authorities required a certificate from the government of Nepal stating that he is not a Nepalese citizen - but its consulate in Hong Kong won't give him one because it says he is not a Hong Kong citizen.

Our letter was based on statements made by Home Office ministers in June last year. Since then, the British authorities have clarified that those statements were based on their own interpretation of Nepalese nationality law, and needed clarification.

In response to a request for more information, the government of Nepal then explained that a child born abroad to Nepalese parents can "choose citizenship of his/her liking" on turning 16, the age from which a citizenship certificate is issued. Anyone who does not make a choice by the age of 21, it said, "automatically loses Nepalese citizenship".

Unsatisfied with this response, senior Home and Foreign Office officials flew to Kathmandu on November 22 to clarify the matter. At this meeting, the Nepalese government explained that there is "a total prohibition on dual nationality in Nepal regardless of how the two nationalities are obtained".

We presume this means that a person holding British nationality by birth in Hong Kong cannot lawfully be granted Nepalese citizenship between the ages of 16 and 21 unless and until he renounces British nationality. Unless he has done so, any Nepalese citizenship certificate held by him would be void.

We call on the Nepalese authorities and the consul-general in Hong Kong to expeditiously provide written confirmation of this to allow these solely British nationals to exercise their claims to citizenship.

South China Morning Post - Monday, February 12, 2007 - What am I, then?

I am a Hong Kong-born Nepalese living permanently in this city since early 1997. A letter to your newspaper on two little-known entitlements of Hong Kong's ethnic minorities to British citizenship prompted me to seek information on my status as a Nepalese national.

The letter, "British citizenship" (November 27), advised that solely Nepalese passport holders born in Hong Kong before June 30, 1976, who have never held a British National (Overseas) passport qualify for a British Overseas Citizens passport if they did not formally renounce British nationality upon turning 21.

As I was born before this date and do not hold BN(O) status, I obtained information from the British consulate on all the requirements I needed to apply. Among these is a certificate from the Nepalese authorities stating that I am not a Nepalese citizen.

Under the Nepal Citizenship Act of 1964, Nepalese citizens who are British by birth in Hong Kong automatically lose their citizenship if they do not renounce their British nationality between the ages of 16 and 21.

I wrote a letter to the Nepalese consulate in Hong Kong asking it to certify that I am not a Nepalese citizen, based on the above act. I met the Nepalese consul-general in December. After going through my letter and the documents provided, he told me - to my great surprise - that the consulate cannot help me because I am not a Hong Kong citizen.

Second, the letter to your newspaper mentioned that many members of Hong Kong's ethnic minorities "do not know they are actually British nationals already". If I am already a British national, how do I find this out? Is this the information the Nepalese consulate is waiting for?

I hope someone can answer my questions because I seem to have encountered deadlock. Both the British and Nepalese authorities seem to be waiting for each other's action, further aggravating the confusion in the Nepalese community.

South China Morning Post - Monday, November 27, 2006 - British citizenship

We are writing to tell your readers about two little-known entitlements to British citizenship held by members of Hong Kong's ethnic minorities. Many of these people do not know they are actually British nationals already.

There have been no recent changes to British law but, following clarifications received this year from the Indian and Nepalese authorities, it has become clear that some people born in Hong Kong - who must to date have never held a British National (Overseas) passport - can register as British citizens.

Solely Nepalese passport holders born in Hong Kong before June 30, 1976, who have never held a BN(O) passport may qualify for a British Overseas citizenship passport if they did not formally renounce their British nationality upon turning 21. Solely Indian passport holders born in Hong Kong before the same date [note: SCMP editorial error, the date should be 30 June 1979 for those of Indian origin] who have never held a BN(O) passport may qualify if they did not formally renounce British nationality upon turning 18.

In most cases, applicants will be able to obtain a British Overseas citizen passport on application at the British consulate. To acquire the right of abode in Britain, they will need to make a separate application to the consulate for British citizenship, to be forwarded to the Home Office.

Correction published in SCMP - Wednesday, 29 November, 2006

The letter "British citizenship", published on Monday advised that solely Indian passport holders born in Hong Kong before June 30, 1976, who have never held British National (Overseas) passports may qualify for British Overseas citizen passports and can register as British citizens if they did not formally renounce British nationality upon turning 18. In fact, the cut-off date was June 30, 1979.

South China Morning Post - Monday, October 23, 2006 - Silence Deafening

There is still a deafening silence from the UK consulate on the position of the many children in Hong Kong who continue to wait for British citizenship certificates after Home Office officials agreed their original applications had been wrongly refused.

There was a time, sadly, when Britain encouraged Indian British National (Overseas) passport holders to look to India to resolve their nationality difficulties. On July 25, 1991, in a debate on the statelessness faced by these people, India's former prime minister Atal Behari Vajpayee told the Indian Parliament that "the attitude of the British government is wrong and is based on apartheid". In the same debate, the Indian minister of external affairs said that "the government has time and again represented to the British government, saying that these people are your citizens and you must take care of them and protect their rights".

The British Nationality (Hong Kong) Act 1997 was enacted only after expressions of concern in both houses of parliament and representations from the governor of Hong Kong, two former incumbents, the Hong Kong Legislative Council, the House of Commons Select Committee on Foreign Affairs, and a former minister with responsibility for the colony. At the time, Britain's prime minister said that the ethnic minorities "were potentially stateless" and that they would "now have a nationality".

After being wrongly refused nine years ago, why have so many applicants been waiting up to eight months, when the Home Office has agreed to process their reconsiderations in five weeks? Why does the British consulate not respond to the many e-mails, telephone calls and letters from affected applicants? What is it doing to help those who have received citizenship certificates which contain errors?

Every six months, Britain's foreign secretary issues a report to Parliament on Hong Kong. The report of February 2003 stated that the British government "regularly raises the lack of racial discrimination legislation as an issue with the Hong Kong government". Perhaps our Foreign Office should take a closer look at our own treatment of Hong Kong's solely British ethnic minorities before trying to preach to others.

South China Morning Post - Monday, September 25, 2006 - BN(O) Limbo

In February, British Consul-General Stephen Bradley cryptically explained to readers of the South China Morning Post that "an anomaly that amounts to a piece of unfinished business" had resulted in 600 ethnic Indian holders of British National (Overseas) passports in Hong Kong being wrongly denied full British citizenship ("Indians in HK win the right to British passports", February 10). Home Office ministers subsequently made commitments to Parliament that extra resources were being allocated to this task, and that the average processing time for reconsiderations would take about five weeks.

Months after the matter has been officially clarified, why are so many wrongly refused applicants still waiting in limbo for their British citizenship to be granted? We were advised on September 14 by the Foreign and Commonwealth Office that close to half of the reconsideration requests submitted between February and July were awaiting a decision. Of the decisions that were finalised in the same period, nearly 7 per cent of the citizenship certificates received in Hong Kong have had to be returned to Britain because they contained errors.

It is high time that Mr Bradley and his team finished this business. It is unfair and unreasonable to delay attempts by ethnic minorities to acquire full British citizenship. Some of these applicants have been patiently waiting for more than nine years. They are not, and should not be treated as, second-class citizens deserving second-class treatment.

Reconsideration of wrongly refused British citizenship applications submitted by minors of Indian descent in Hong Kong

The British Nationality (Hong Kong) Act 1997 made provision for the solely British ethnic minorities of Hong Kong, who according to the Prime Minister would become potentially stateless after Hong Kong's handover to China, to acquire full British citizenship. The majority of beneficiaries of this legislation are British National (Overseas) or British Overseas citizen passport holders of Indian, Pakistani or Nepali descent. To register under the he 1997 Act, applicants must be solely British and have no other nationality.

The British Government believed, until late January 2006, that children from Hong Kong who hold British National (Overseas) or British Overseas citizen passports but have Indian citizen parents were unable to meet the requirement to hold no other citizenship and could therefore not be registered as British citizens under the 1997 Act. This position turned out to be mistaken and the Ministry of Home Affairs of India has recently provided further information on a number of points of Indian citizenship law. The effect of this is that a number of individuals that British authorities believed to be dual British/Indian nationals are in fact solely British.

British authorities estimate that 600 British citizenship applications from children in Hong Kong were wrongly refused on the basis of the previous guidance, mostly dating from the period July 1997 to June 1999. Where the applicant in such cases confirms that he or she still wishes to receive British citizenship the decision will be reconsidered on request. No additional fee will be payable by the applicant in such cases.

If you fall into this category please write to the British Consulate giving your name, date of birth and place of birth. If your name has changed since your original application please let them know the name under which you originally applied. If possible please include a copy of your refusal letter, as this will help locate your original file. A template to request reconsideration can be downloaded by clicking on this link. Please do not attend the British Consulate-General, as you cannot submit this letter in person. On receipt of your letter the British Consulate-General will forward it to the Home Office and your original application will be reassessed automatically. They will acknowledge receipt of your letter and contact you, in due course, once the Home Office reassessment is complete.

Please send your letter to: The Ethnic Minorities Citizenship Unit, British Consulate General, 1 Supreme Court Road, Admiralty, Hong Kong. If you prefer the letter can be faxed to the British Consulate General at (852) 2901 3060.

There is no time limit for applications under the British Nationality (Hong Kong) Act 1997 and if you have not previously applied and are eligible for registration you can still make a fresh application. You will need to contact the British Consulate-General in Hong Kong to make an appointment at (852) 2901 3050.

Changes to India's Citizenship Act, 1955 give a British citizenship entitlement to a small number of children of Indian origin born in Hong Kong after 3 December 2004

India's Citizenship (Amendment) Act 2003 was passed by the Indian Parliament on 22 December 2003 and came into force after receiving the assent of the President of India on 7 January 2004. Section 4 of the 2003 Act makes a number of important changes to the way citizenship of India is acquired by descent. A summary of the amended Indian citizenship law is available from the Indian Ministry of Home Affairs website at http://www.mha.nic.in/citizenship/acquisition.htm.

These changes have very significant implications for children born in Hong Kong on or after 3 December 2004 in cases where one parent is a citizen of India and the other parent is solely a British National (Overseas) or a British Overseas citizen (because of the Hong Kong (British Nationality) Order 1986).

Until 2 December 2004, a person born in Hong Kong who had at least one parent who was a citizen of India by birth automatically acquired citizenship of India by descent. As they would have acquired the Indian nationality at birth, they would have no automatic claim to British nationality if born in Hong Kong after 30 June 1997 because both British National (Overseas) and British Overseas citizenship are generally non-transmissible.

With effect from 3 December 2004, Indian citizenship law has been changed. Under the revised law, a child born to an Indian citizen abroad on or after 3 December 2004 shall not be a citizen of India, unless the birth is registered at an Indian Consulate within one year of the date of birth or with the permission of the Central Government after that time period. Furthermore, the application for birth registration at an Indian Consulate must be now accompanied by an undertaking in writing from the parents of the child that he or she does not hold the passport of another country.

As the child no longer acquires Indian citizenship automatically, unless one of the parents is a Chinese citizen, a Hong Kong born child would potentially be stateless at birth. To eliminate statelessness as a result of the handover of Hong Kong, the Hong Kong (British Nationality) Order 1986 contains provisions for certain people, who would otherwise be stateless, to become British Overseas citizens at birth.

Article 6(2) of the Hong Kong (British Nationality) Order 1986 confers British Overseas citizenship automatically at birth on children born on or after 1 July 1997 to former Hong Kong British Dependent Territories citizens if those children would be otherwise stateless at birth. It covers children both of Hong Kong British Dependent Territories citizens who became British Nationals (Overseas), and of those who failed to acquire British National (Overseas) status, and who themselves became British Overseas citizens on 1 July 1997.

In summary, a child born in Hong Kong will automatically be a British Overseas citizen at birth in the following circumstances:

The parents can apply for the birth to be registered at the British Consulate who can issue a British birth certificate. The advantages of Consular Birth registration are that British birth certificates stating the child's claim to British Overseas citizenship are available and that permanent and always accessible records of such entries are maintained at the General Register Office in the United Kingdom.

To be issued a British Overseas citizen passport, the parents should approach the British citizen passport section of the British Consulate-General at 1 Supreme Court Road, Hong Kong (Tel: 2901 3262 or email: BCpassport@bcg.org.hk).

It is important to NOT register the birth of the child at an Indian Consulate, as acquiring Indian citizenship will affect the child's entitlement to subsequently acquire full British citizenship by registration under section 4B of the British Nationality Act 1981.

It is also important to note that these provisions will not apply in any cases where either parent of the child is a Chinese citizen. Children born to such a parent will automatically acquire Chinese citizenship by birth in Hong Kong and the provisions of article 6(2) of the Hong Kong (British Nationality) Order 1986 will not be relevant.

After establishing the claim to British Overseas citizenship, as long as the child continues to have no other nationality, the child will be entitled to registration as a full British citizen (with right of abode in the UK) under section 4B of the British Nationality Act 1981. Under section 4B of the 1981 Act, a person who is a British Overseas citizen is entitled to be registered as a British citizen if the Home Secretary is satisfied that the person has no other citizenship or nationality and has not, after 4 July 2002, renounced, voluntarily relinquished or lost (whether through action or inaction) any other citizenship or nationality. The British authorities have recently confirmed under what circumstances a person who is a British Overseas citizen by virtue of article 6(2) or 6(3) of the Hong Kong (British Nationality) Order 1986 can be registered as a British citizen. See their response in Parliament by clicking on this link.

To apply for full British citizenship (with right of abode in the UK) for the child, the parents should approach the Consular section of the British Consulate-General at 1 Supreme Court Road, Hong Kong (Tel: 2901 3050 or email: consular@bcg.org.hk) to obtain the relevant application forms, which are Guide B(OS) and Form B(OS). Such applications to register for British citizenship take several months to process and are referred to the Home Office in the United Kingdom to be dealt with.

The information given here is meant only as a brief and general guide to the law. It is not a comprehensive statement of either the law or policy. We hope that this guide can help you to better understand the general situation. However, please be advised that each situation is different and you should always seek professional advice before taking action in regard to your circumstances. Accordingly, no representations or warranties whatsoever are made as to the adequacy, reliability, accuracy, or completeness of any of the material contained on this website. This is an unofficial website and is not affiliated with either Her Majesty's Government or the Government of India.

South China Morning Post - Thursday, February 22, 2007 - Seeking clarification