British citizenship: Hong Kongers and the children of unmarried British fathers

This story contrasts the UK Government’s approach to two issues relating to citizenship and the former British Dependent Territories. The first is the anomaly in the British Nationality Act 1981 (BNA) which denies British Overseas Territories citizenship (BOTC) to a very specific group of people: Children born before 1st July 2006, whose parents were not married, and where only the father was a BOTC citizen. It is something that campaigners have been trying to get changed for a long time, and the only excuse seems to have been that the UK Government has been too busy to deal with it.

The contrast is with the latest decision affecting the British National (Overseas) (BN(O)) citizens in Hong Kong. BN(O) is a Hong Kong specific form of British nationality. It is not a status that can be acquired by descent, and the intention has always been that it eventually dies out. Three hundred and fifty thousand people have BN(O) passports, although there are many more people with BN(O) status who have opted for a Hong Kong SAR passport. BNO(O) nationals have no automatic right of residence in the UK.

In October 2020 the Government announced that all BN(O) citizens would now be able to move to the UK to study and work for a period of up to five years as part of a route to full British citizenship. There is no need to have a BN(O) passport. The cost of the visa has been set at a lower rate than for other routes into the UK. If a BN(O) citizen eventually becomes a full British citizen, then the descent rules apply to their children. Those who can support themselves for six months, and can pay the immigration health surcharge, are welcome to apply.

There have been many people calling for this move since the tensions in Hong Kong began to rise. The imposition of the National Security Law is a clear erosion of the rights of the people of the region and is therefore a breach of the Sino-British Joint Declaration of 1984. Hong Kong is effectively no longer an autonomous region, and the people no longer have the protections promised. The new visa offers a way out for those who can afford it.

But there is still no route to citizenship for those affected by the unmarried fathers rule, which is a problem entirely of the UK’s own making. The situation originally applied to all British citizens and was eventually rectified, but not for those whose British citizenship derives from an Overseas Territory. The reason given at the time by the government Minister, Lord Taylor of Holbeach, was: “there was no time for consultation with the overseas territories’ governments before the legislation was introduced”. It did promise to look again for suitable opportunities to revisit this once the bill was law. That was six years ago.

The issue was raised at the Foreign Affairs Committee meetings in 2017, and in 2018 the parliamentary Joint Human Rights Committee issued a report calling for a British Nationality Act 1981 (Remedial) Order to address this and other anomalies within the BNA. “Such discrimination should not be allowed to persist,” the report said. “We consider it unacceptable that discrimination in acquiring British nationality persists depending on whether a person’s father or mother was a British Overseas Territories citizen, or whether or not their parents were married. We recommend that the home secretary take urgent steps to bring forward legislation to do so.”

The promised consultation process between the UK Government and the British Overseas Territories Governments’ has now taken place. They were supportive of the change, but still nothing has happened. Earlier this year, Baroness Williams of Trafford, the then Equalities Minister, said in response to a parliamentary question that “we will provide details of any proposed resolution in due course.” She has since moved on from her role. The irony is that it was the Hong Kong situation that was the main driver behind the BNA in the first place, and it is the Hong Kongers who have now been given a route to citizenship.

Trent Miller, born of unmarried parents (an American mother and a Montserratian father) has been campaigning on this issue for years. He is not impressed with the missed opportunities. “They say primary legislation is required. Well, you have an Immigration Bill going through parliament right now. The same discrimination for mainland UK illegitimate children born to mainland UK fathers was fixed using the Immigration Act 2014. How is using this bill different?

“They bend over backwards to ensure residence rights for Irish and EU citizens, but for their own black British Overseas Territories fathers and their illegitimate children - forget it, we just don’t matter! You lot, get to the back of the queue! How messed up is that?

“Why are the heads of OT governments complicit in condoning and allowing this hurtful discrimination to continue to exist which is affecting their own flesh & blood? What is their voice not stronger and louder on the issue? They should be demanding that the UK government fix this.“