Британский национал (вне Великобритании) из Гонконга: статус и перспективы.

Class of British nationality

British National (Overseas), abbreviated BN(O), is a class of British nationality associated with the former colony of Hong Kong. The status was acquired through voluntary registration by individuals with a connection to the territory who had been British Dependent Territories citizens (BDTCs) before the handover to China in 1997. 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. 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 automatic right of abode there or in Hong Kong, but all BN(O)s would have had permanent resident status in Hong Kong when they acquired this nationality. Following the Chinese government's imposition of controversial national security legislation on Hong Kong in 2020, the UK has allowed BN(O)s and their dependent family members to apply for renewable five year residence visas since 31 January 2021. This nationality gives its holders favoured status when they are resident in the United Kingdom, conferring eligibility to vote, obtain citizenship under a simplified process, and serve in public office or government positions. There are an estimated 2.9 million BN(O)s; about 708,000 of them hold active British passports with this status and enjoy consular protection when travelling abroad. However, the Chinese government does not recognise these passports as valid travel documents and restricts BN(O)s from accessing British consular protection from diplomatic missions located in Hong Kong and mainland China.

Hong Kong was a British colony from 1842 until its transfer to China in 1997. The territory initially consisted only of Hong Kong Island and was expanded to include Kowloon Peninsula and Stonecutters Island in 1860. All of these areas were ceded in perpetuity to the United Kingdom by the Qing dynasty after the Opium Wars. Britain negotiated a further expansion of the colony to include the New Territories in 1898, which were leased (rather than ceded) from Qing China for a period of 99 years. As the end of the lease drew closer, Hong Kong's future was uncertain. Because most of the territory's industry was developed in the New Territories, separating the leased area and returning only that part of the colony to China was economically and logistically infeasible. The colonial government could not grant new land leases in the New Territories past 1997, causing concern among local businesses over the long term viability of further real estate investment. Local residents were apprehensive about the prospect of being handed over to Chinese rule and overwhelmingly preferred that Hong Kong remain a British territory; contemporary opinion polls show that 85 per cent of residents favoured this option. The British government attempted to negotiate an extension of its administration of Hong Kong past 1997, but pivoted towards ensuring the city's stability when it became clear that the Chinese authorities would not allow this.

Before 1983, all citizens of the British Empire, including Hongkongers, held a common nationality. Citizens of the United Kingdom and Colonies (CUKCs) had the unrestricted right to enter and live in the UK, although non white immigration was systemically discouraged. Immigration from the colonies and other Commonwealth countries was gradually restricted by Parliament from 1962 to 1971 amid decolonisation, when British subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the UK. After passage of the British Nationality Act 1981, CUKCs were reclassified into different nationality groups based on their ancestry and birthplace, and the vast majority of British subjects in Hong Kong became British Dependent Territories citizens (BDTCs) with the right of abode only in Hong Kong. Only those reclassified as British citizens held an automatic right to live in the United Kingdom. The British government issued a memorandum attached to the Joint Declaration that concerned transitional arrangements for the nationality of residents, which included a stipulation that a new nationality would be created for Hongkongers that did not confer right of abode in the United Kingdom. The Hong Kong Act 1985 created the British National (Overseas) status to fulfil this requirement. All BDTCs who did not have a connection with a remaining British Dependent Territory other than Hong Kong lost 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.

The deprivation of full passports and nationality rights for Hongkongers, and its reinforcement as part of the Joint Declaration, drew criticism for effectively making ethnicity the deciding factor in determining what rights British subjects were entitled to. Hong Kong residents and Legislative Council members, with some supporters in the British Parliament, and that residents should have been offered a choice to continue living under British rule. Proponents argued that giving Hongkongers the right of abode as an "insurance policy" to protect against a potential curbing of civil freedoms by communist authorities after the handover would encourage them to stay in the territory and help prevent a mounting brain drain. BDTCs in Gibraltar and the Falkland Islands were already given access to citizenship, and it was noted that asking for the same to be granted to Hong Kong residents was only requesting equal treatment. Legislative Councillors and their supporters in Parliament unfavourably compared these nationality arrangements to the situation in Macau, where residents were allowed to retain Portuguese citizenship and right of abode after that territory's transfer to China in 1999. the outflow grew dramatically following the 1989 Tiananmen Square protests. The brutality of the Chinese government's response against demonstrations for democracy immediately dimmed local optimism in Hong Kong's future, indicated by a sudden drop in stock market and property values. The crackdown caused a rush among residents to seek permanent residency or citizenship in other countries. suspicions that were only exacerbated by the Tiananmen incident. Over a half million people left Hong Kong during the peak migration period from 1987 to 1996. because the status qualified them to register as BN(O)s. Parliament ultimately refused to grant all Hongkongers right of abode in the United Kingdom, citing difficulty in absorbing a large number of new citizens and that doing so would contradict the Joint Declaration. Because many departing residents were well educated and held critical positions in medicine, finance, and engineering, the intention of the plan was to convince people within this professional core of Hong Kong's economy to remain in the territory after 1997. On the other hand, the Chinese government considers even these restricted grants to be a breach of the treaty and specifically disregards the British citizenship of those who obtained it under the BNSS. Legislative Councillors derided the Selection Scheme as a thinly veiled attempt by the British government to absorb only the wealthy and well educated elite and accused the UK of abandoning the moral responsibility it had for subjects in the colony.

Substantive debate on expanding BN(O) rights was restarted in 2020, when the National People's Congress (NPC) bypassed the Legislative Council and directly approved national security legislation for Hong Kong that severely penalises acts of secession and subversion against the state as a response to ongoing anti government protests. This was done despite an explicit stipulation in the Hong Kong Basic Law stating the territory's responsibility for enacting its own legislation in that area. Pro democracy Legislative Councillors and activists denounced the direct application of national law without local consultation as a fundamental upheaval of the regional legal system, labelling it as the end of territory's autonomy and "one country, two systems". The United Kingdom, along with its EU, Five Eyes, and G7 allies, further condemned the legislation as a severe violation of the Joint Declaration that inherently undermines the system of self government promised to Hong Kong and the fundamental rights of its residents. The Home Office initially announced that the existing six month stay limit on BN(O)s would be extended to renewable periods of 12 months with the right to work. When the national security law came into force, the British government declared a further extension of residence rights; BN(O)s would have leave to remain in the UK with rights to work and study, after five years they may apply for settled status. They would then be eligible for full citizenship after holding settled status for 12 months. This was implemented as the eponymously named "British National (Overseas) visa", a residence permit that BN(O)s and their dependent family members have been able to apply for since 31 January 2021. BN(O)s and their dependents who arrived in the UK before the new immigration route became available were granted "Leave Outside the Rules" at the discretion of the Border Force to remain in the country for up to six months as a temporary measure. Despite the COVID 19 pandemic, about 7,000 people had entered the UK under this scheme between July 2020 and January 2021. The BN(O) visa was granted to over 97,000 applicants in 2021; As of 31 August 2022, there were over 133,000 BN(O) visas granted since January 2021. Countering the expanded access to UK residence, the Chinese and Hong Kong governments withdrew their recognition of BN(O) passports as valid travel documents for immigration clearance. The territorial government further requested 14 countries that they stop accepting BN(O) passports for issuing working holiday visas, although the documents remain valid for visa purposes in all of those nations. The NPC again directly legislated for the region in March 2021, approving a rework of local election laws that reduces the number of Legislative Council seats elected by the public and establishes a screening committee to scrutinise the political loyalty of candidates for public office. Since this decision, the UK has considered China to be in a "state of ongoing non compliance" with the Joint Declaration.

British Nationals (Overseas) are exempted from obtaining visas or entry certificates when visiting the United Kingdom for less than six months. They and their dependent family members are eligible to apply for the "British National (Overseas) visa", an indefinitely renewable residence permit valid for either a period of 30 months or five years. BN(O)s are not considered foreign nationals when residing in the UK and are entitled to certain rights as Commonwealth citizens. These include exemption from registration with local police, voting eligibility in UK elections, and the ability to enlist in the British Armed Forces. British Nationals (Overseas) are also eligible to serve in nearly all Civil Service posts (except for those in His Majesty's Diplomatic Service and the Foreign, Commonwealth and Development Office), be granted British honours, receive peerages, and sit in the House of Lords. If given indefinite leave to remain (ILR), they are eligible to stand for election to the House of Commons and local government. About 2.9 million people retain BN(O) nationality, with 680,000 of them holding active British passports with the status. When travelling in other countries, they may seek British consular protection. BN(O)s may become British citizens by registration, rather than naturalisation, after residing in the United Kingdom for more than five years and possessing ILR for more than one year. Registration confers citizenship otherwise than by descent, meaning that children born outside of the UK to those successfully registered will be British citizens by descent. Becoming a British citizen has no effect on BN(O) status, someone can concurrently possess a British citizen passport and a BN(O) passport. Alternatively, the British citizen passport can be issued upon request with the observation that states the holder's right of abode in Hong Kong, and the British National (Overseas) status. Additionally, BN(O)s who are not Chinese nationals and held no foreign nationality on 3 February 1997, who were ordinarily resident in Hong Kong on that date, and who continue to reside there are entitled to register as British citizens. Children born after that date who later became BN(O)s and fulfil the other requirements may also register for citizenship. Whether these applicants receive citizenship by descent or otherwise is dependent on how they obtained BDTC status. Remaining BN(O)s who held no other citizenship or nationality on or before 19 March 2009 are entitled to register as British citizens by descent. However, if a BN(O) acquires another citizenship or nationality and renounces it after either applicable date before applying to register as a British citizen, that person would not be eligible.

Although BN(O)s may travel using a British passport, because the status does not entitle its holders to the right of abode in either the United Kingdom or Hong Kong, they may face restrictions when travelling to either place and are not treated identically to British citizens when entering other countries. The Joint Declaration allows continued use of foreign passports as travel documents post handover, but the Chinese and Hong Kong governments have not allowed BN(O) passports to be used for immigration clearance since 31 January 2021. BN(O)s are required to pay an immigration health surcharge to access National Health Service benefits when applying for a visa to remain in the UK for longer than six months and do not qualify for most welfare programmes.

The vast majority of British Nationals (Overseas) are ethnically Chinese and were automatically granted Chinese nationality at the transfer of sovereignty in 1997. Individuals who hold Chinese nationality concurrently with any other nationality, including BN(O) status, are treated solely as Chinese nationals under Chinese nationality law. Consequently, most BN(O)s do not have access to British consular protection while in Hong Kong, Macau, or mainland China. Until 31 January 2021, BN(O)s were able to use their UK passports for immigration clearance in Hong Kong who were not granted Chinese nationality in 1997. BN(O)s are barred from registering same sex marriages at the British Consulate General, Hong Kong. Consular same sex marriages under UK law are contingent on local authority approval, which the Hong Kong government has explicitly denied. Conversely, Chinese authorities have not prohibited these marriages from taking place in mainland China. Non Chinese nationals who hold permanent residency or citizenship outside of Hong Kong and have not returned to the territory for more than three years at any time since the transfer of sovereignty automatically lose their right of abode. However, these individuals acquire the right to land, which is identical to the right of abode except that these persons can be subject to a deportation order. BN(O)s subject to a deportation order would lose the right to land and would become effectively stateless if their permanent residency in another country were to lapse or expire.

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens were European Union citizens. British Nationals (Overseas) have never been EU citizens and did not enjoy freedom of movement in other EU countries. They were, and continue to be, exempted from obtaining visas when visiting the Schengen Area.