New legal advice blows apart UK Government claim that Sino-British Joint Declaration prohibits extension of rights of BNOs

The UK government claims that the Sino-British Joint Declaration prohibits the extension of greater rights to British National (Overseas) passport holders has been blown apart by legal advice given to Bob Seely MP and Imran Ahmad-Khan MP.

The advice, by one of the UK’s most prominent immigration QCs, Laurie Fransman QC, says that ministers are wrong to say that their hands are bound by the Sino-British Joint Declaration when it comes to the issue of right of abode for BN(O).

Ministers have frequently said, most recently last year, that an offer of right of abode would be in breach of the commitments made by the British and Chinese governments in memorandums attached to the 1984 Sino-British joint declaration on the future of Hong Kong. Those memorandums established BN(O) in Hong Kong as a new class of British citizens that could only be claimed by those born before the handover.

But in a new opinion, Laurie Fransman, the leading QC on nationality law, writes: “Domestic British nationality law has evolved since the 1984 declaration including by giving greater extension of the right of abode to ‘British nationals’, including BN(O)s, in compliance with the expectations of international law.”

British citizens, including some BN(O)s, were given a right to register, he points out, adding: “Manifestly, the UK government did not consider itself barred by the memoranda, or anything else, from taking such action.”

Bob Seely MP said: “It would be a stain on our country’s reputation if other nations were to open their arms, metaphorically speaking, to Hong Kong BN(O) folk in their hour of need before the UK did so.”

The advice follows legal advice from the former Attorney General Lord Goldsmith QC to the same effect.

Goldsmith’s legal advice has been endorsed in a separate letter from senior QCs including the former Deputy President of the Supreme Court Lord Mance, Baroness Kennedy of the Shaws QC and Lord Carlile QC who stated that: “as senior lawyers and/or immigration experts, we see no reason in international law why the government should be proscribed from extending the rights of British National (Overseas) passport holders, up to and including the extension of rights of abode.”

Seely and Ahmad-Khan have now written to the Home Secretary Priti Patel, saying: “Given the deteriorating situation in Hong Kong, with the continued erosion of the rule of law, it strikes us that the government could consider reviewing its position on BN(O) passports.

“BN(O) passports were always a compromise, dependent in part on the rights guaranteed in the handover settlement. The introduction of the national security legislation means that that settlement is essentially dead. As such there are clear legal and practical grounds for looking again at this matter.”

Johnny Patterson, Director of Hong Kong Watch says, “The UK Government has refused to budge on BNO passports based on a misreading of the Sino-British Joint Declaration. This new legal advice shows they are free to take whatever actions are needed to help Hong Kongers and give them a vital lifeline.”

The letter from Bob Seely MP and Imran Ahmad-Khan MP to the Home Secretary in full: