As controversial national security law comes into force in Hong Kong, the UK “comes to the rescue”
Updated: Oct 18, 2020
On 30 June 2020, Beijing signed its contentious national security law, granting the Chinese government sweeping powers to crack down on opposition and dissent by people in Hong Kong and by Hong Kongers abroad. The law, which was swiftly approved in Beijing, criminalises “secession, subversion, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security”. Transgressions of these vaguely defined terms warrant severe consequences, including and up to, for certain offences, life in prison. The Communist Party leader, Xi Jinping, passed the law in an effort to expand his control over Hong Kong, and more specifically to quash the pro-democracy protests which have been intensifying in recent years into a confrontational challenge against China’s encroachments in Hong Kong.
In response to this erosion of their rights, the British government has promised to protect the people of Hong Kong by offering some of them a path to British citizenship.
The law, which has been widely criticised as anti-democratic, came into effect the same day the official text was published. Within 24 hours of it coming into force, the first arrest under the national security law was made, as a man was detained for holding a Hong Kong independence flag. His arrest was the first of many, proving critics of the law, who warned that it would undermine the city’s autonomy and democracy by silencing dissent and free speech, right. In response to this erosion of their rights, the British government has promised to protect the people of Hong Kong by offering some of them a path to British citizenship. Hong Kong has been historically entangled with the British for a very long time. The region first came under British imperial control when Britain invaded the territory in 1841. The motivation for annexing was its strategic location. In 1842, after the First Opium War, Hong Kong Island became an official colony of the British Empire. This colony expanded further when Kowloon (which is in the region of Hong Kong) was acquired by Britain after the Second Opium War in 1860. Britain obtained control over the final area comprising Hong Kong, the New Territories, in 1898 when it entered into a lease agreement with China which allowed for British control over the region for a period of 99 years. When the lease period came to an end in 1997, the territory was handed back to China. However, this hand back was subject to certain conditions, including a guarantee that a level of autonomy in Hong Kong would be preserved, as well as that certain defined freedoms that do not exist in mainland China, such as the freedom of expression, would be maintained. This framework is often referred to as ‘one country, two systems’ and is what has separated the legal, economic and political system of Hong Kong from mainland China until recently. During British rule, most Hong Kong residents were categorised as British Dependant Territory Citizens (BDTC). In the years leading up to the handover, the Hong Kong Act 1985 and the Hong Kong (British Nationality) Order 1986 were enacted, allowing people from Hong Kong to apply to register for the new British National (Overseas) (BNO) status instead. Many Hong Kong residents chose to register for BNO status, either to retain a connection to the UK or simply because this was their only way to obtain a passport at the time. The final deadline to apply for BNO was 1 July 1997, when Hong Kong was officially handed back to China.
BNOs and BOCs are not considered British citizens; they must comply with all immigration rules the same way that third-party nationals do.
Hong Kongers who were left stateless on 1 July 1997, when they lost their BDTC status, due to, for example, not being recognised as Chinese nationals automatically received British Overseas Citizenship (BOC) by operation of article 6(1) of the Hong Kong (British Nationality) Order 1986. This occurred even if they had failed to register for BNO status by the deadline. As of February 2020, there were approximately 350 000 holders of BNO passports in Hong Kong. The Home Office, however, estimates of the number of BNOs actually living in Hong Kong is closer to 3 million. BNOs and BOCs are not considered British citizens; they must comply with all immigration rules the same way that third-party nationals do. Neither BOC or BNO status includes the right of abode, meaning that BNO holders do not have any automatic right to live and work in the UK. BNO status does not provide BNO holders with a ‘home country’, only to legal and consular protection. In light of the enactment of the national security law in Hong Kong, however, the UK government announced plans to change this. The Home Office strongly condemned the law, stating that “the new security law will undermine the existing legal commitments to protect the rights of Hong Kong people”, ostensibly offering all BNO’s in Hong Kong a path to citizenship in the same breath.
[The UK] government capitalises on its own imperial history whilst simultaneously publicly challenging Chinese imperialism.
The picture painted in the Home Office policy announcement is that the UK government, as a former coloniser and a party to the Sino-British Joint Declaration, is stepping up to defend democracy and fulfil its moral obligation to the people of Hong Kong.
On 1 July 2020, the Prime Minister delivered on that promise, calling the imposition of the security law a “clear and serious” violation of the Chinese treaty with Britain and personally vowed to introduce a five-year visa for all Hong Kong citizens with BNO status. Long term, this five-year status is intended to lead to allowing these visa holders indefinite leave to remain and, ultimately, to British citizenship. In an astute political move, the government thus capitalises on its own imperial history whilst simultaneously publicly challenging Chinese imperialism. Although the motives behind the policy may be less altruistic than the Home Office wishes to admit, the result for the people of Hong Kong, who have the most to gain from the proposal, remains the same and therefore should not to be underestimated. Charlotte Rubin is a Queen Mary law graduate. She writes about immigration and human rights issues for Seraphus, the Justice Gap, Free Movement and other outlets. To read about how Hong Kong nationals are taking the new national security law, check out "Hong Kong: Through Our Eyes. Part I"