BritishHongKong Official Site

Human Rights and Racial Discrimination in the Borders, Citizenship and Immigration Bill

I am deeply concerned about the racial discrimination and current lack of human rights in the UK’s nationality laws. I sincerely hope that you will consider the following points in the upcoming Borders, Citizenship and Immigration Bill and to take the necessary actions to uphold justice for British nationals who have been deprived of the unconditioned right to enter the UK and access to full British citizenship.

1) Violation of the rights of British nationals

The right to enter one’s country of nationality is a basic human right guaranteed under Article 12 of the International Convention of Civil and Political Rights (ICCPR) and Protocol 4 of the European Convention of Human Rights (ECHR). It is clear that HM Government is aware that the UK is currently in breach of these human rights instruments, as it has admitted that “in the absence of any change in the arrangements for issuing British passports and the relevant provisions of our immigration legislation, it is not possible to ratify”[1] Protocol 4 of the ECHR.

However, although the UK has signed these human rights instruments more than 30 years ago and HM Government is aware that legislative changes are necessary, it is appalling that HM Government is “not proposing to make any changes in relation to the status of British nationals”[2] and thus have decided to continue violating the human rights of its own nationals by denying them entry into the UK. To add insult to injury, more than 400 million European citizens are already guaranteed these very same rights to live and work in the UK under EU treaties, which have been present since the 1970s. Given that these rights are already enjoyed by hundreds of millions of foreign nationals, there is no justifiable reason for the UK to continue to deny these rights to British nationals, whose number is far less than the number of European citizens. Therefore, it would only seem logical to make immediate legislative changes to restore the rights for all British nationals to enter the UK.

2) Racial discrimination

Furthermore, all British nationals were previously able to enter the UK without subject to immigration control. But the British Nationality Act 1981 and its subsequent amendments, which separated British nationals into six categories, has forcibly removed the right of various British nationals to enter the UK, and have been heavily criticised as being racially discriminatory. As described by Anne Dummett, the overall “effect [of these categories] is to give full British citizenship to a group of whom at least 96% are white people, and the other four forms of nationality to groups who are at least 98% non-white.”[3] This inherent race discrimination is also reiterated in Lord Goldsmith’s recent Citizenship Review: “In the past the different categories [of British Nationality] have created much unhappiness particularly as the concepts of “patriality” were seen as a way of discriminating between white and black members of overseas communities.”[4] In addition, both the European Commission of Human Rights and the UN Committee on the Elimination of Racial Discrimination have criticised aspects of the UK’s different categories of British nationality as containing elements of race discrimination.[5], [6] Given this race discrimination in the UK’s nationality laws, I strongly encourage you to include changes in the Bill to remove racial discrimination in the categories of British nationality.

3) No barriers to restoring human rights and removing racial discrimination

In relation to a question on whether the Bill will redress any race discrimination in the UK’s nationality laws, HM Government recently claimed that “there are particular legal reasons why we need to retain the category of British National (Overseas) with links to Hong Kong, because of our treaty commitments.” However, this is factually incorrect and entirely misleading.

It has long been concluded by the parliamentary Foreign Affairs Committee in a report on Hong Kong in 1989 that “to grant full British Citizenship, however, would contradict the British memorandum on nationality attached to the Joint Declaration. This memorandum is not part of the Joint Declaration and to go against it would not constitute a breach of the Treaty.”[7] As testament to this, various laws since then have granted certain British Nationals (Overseas) an entitlement to register as full British citizens – the British Nationality (Hong Kong) Act 1990, British Nationality (Hong Kong) Act 1997 etc – none of which have breached the Joint Declaration on the future of Hong Kong. Thus, it is clear that granting full British citizenship to British Nationals (Overseas) will not breach any international treaty. In the review, Lord Goldsmith stated that: “The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship. It is likely that many would not take this up as the prospects economic and fiscal of moving to the UK are not favourable to those well-established in Hong Kong.”[8] In fact, given the UK has signed Protocol 4 of the ECHR and have ratified the ICCPR and various treaties on anti-discrimination, the UK would be in breach of its obligation under these international instruments by not granting equal citizenship rights i.e. full British citizenship and the right to enter the UK to all British nationals.

Therefore, I strongly urge the UK to make the necessary changes in the Borders, Citizenship and Immigration Bill to allow all British nationals an entitlement to be registered unconditionally as full British citizens, in order to restore these basic human rights to all British nationals and to remove the blatant racial discrimination in the UK’s nationality and immigration legislation.

If you would like more information, please feel free to contact us at info@britishhongkong.com or to refer to our written submission[9] to the Home Affairs Committee on the Draft (Partial) Immigration and Citizenship Bill.