Introduction
This note sets out the Administration's
response to questions raised regarding
Chinese nationality and HKSAR permanent
residency. The questions are listed under
items 6 to 9 of Part C of Appendix I of
the background brief prepared by the Legislative
Council Secretariat (LC Paper No. CB(2)1378/02-03(03)),
and also raised during the meeting of the
Bills Committee of the National Security
(Legislative Provisions) Bill on 8 April
2003.
Nationality Law of the People's
Republic of China |
| 2. |
The Nationality Law of the People's
Republic of China (PRC), which is applicable
to the HKSAR by virtue of Article 18 and
Annex III of the Basic Law, stipulates the
acquisition, loss and restoration of the
Chinese nationality (Annex
I). The Nationality
Law does not recognize dual nationality,
and seeks to minimize situations in which
people are made stateless. |
| 3. |
Articles 4 and 5 provide that a person
of Chinese descent (i.e. one or both of
his parents is a Chinese national) is a
Chinese national, unless he was born abroad,
has acquired foreign nationality at birth,
and his parents who are Chinese nationals
have settled abroad (if only one of his
parents is a Chinese national, such parent
has settled abroad). |
| 4. |
The Nationality Law provides for the
acquisition of Chinese nationality by persons
born in China whose parents are stateless
or of uncertain nationality (Article 6),
and provides for naturalisation of foreigners
and stateless persons (Article 7).
|
| 5. |
The Nationality Law also provides for the
loss of Chinese nationality by Chinese nationals,
which is automatic if a Chinese national
has settled abroad and has acquired a foreign
nationality of his own free will (Article
9), or upon approval of an application (Articles
11 and 14) on any one of the grounds as set
out in Article 10. It is also stipulated
that state functionaries and military personnel
on active service are not allowed to renounce
their Chinese nationality (Article 12). |
| Implementation of the Nationality
Law in the HKSAR |
| 6. |
The implementation of the Nationality Law
in the HKSAR is stipulated in the "Explanations
of Some Questions by the Standing Committee
of the National People's Congress concerning
the Implementation of the Nationality Law
of the PRC in the HKSAR" ("Explanations")
which was adopted in May 1996 (Annex
II). |
| 7. |
The Explanations deal with the implementation
issues relating to the status of Chinese
nationality and foreign consular protection
that are of particular relevance to the circumstances
of Hong Kong. In particular, paragraphs 5
and 6 of the Explanations authorized the
HKSAR Government to designate its Immigration
Department as the authority responsible for
nationality applications. |
| 8. |
Whether a Hong Kong resident of Chinese
nationality who has subsequently acquired,
or is about to acquire, a foreign nationality
may lose his Chinese nationality would need
to be considered in accordance with the Nationality
Law and the Explanations. Specifically, Paragraph
1 of the Explanations provides that where
a Hong Kong resident is of Chinese descent
and was born in the Chinese territories (including
Hong Kong), or where a person satisfies the
criteria laid down in the Nationality Law,
he is a Chinese national. Consequently, his
Chinese nationality would be lost only if
his declaration of change of nationality
made in accordance with Paragraph 5 of the
Explanations has been approved by the Director
of Immigration, or his application for renunciation
of Chinese nationality made in accordance
with Article 11 of the Nationality Law has
been approved by the Director of Immigration. |
| Reference materials on the
Nationality Law of the PRC |
| 9. |
As requested by Members, selected reference
materials on the dual nationality problem
of Chinese nationals residing overseas (in
particular those in the South Eastern Asian
countries) is extracted at Annex III 1 (in
Chinese only). |
| HKSAR permanent residency status |
| 10. |
The specific facts of each case have
to be taken into account in assessing a
person's
permanent residency status. The principal
legal provisions that are relevant are -
| (i) |
Article 24 of the Basic Law (Annex
IV) |
| (ii) |
Schedule 1 to the Immigration Ordinance
(Cap. 115) (Annex
V) |
|
| 11. |
In accordance with the above, the circumstances
under which an HKSAR permanent residency
status would be lost can be summarized
as follows -
| (i) |
For a HKSAR permanent resident who
acquired the permanent residency status
by virtue of paragraphs 2(a) to 2(c)
of Schedule 1 to the Immigration Ordinance,
his permanent residency status would
be lost if his declaration of change
of nationality made in accordance with
Paragraph 5 of the Explanations has
been approved by the Director of Immigration,
or if his application for renunciation
of Chinese nationality made in accordance
with Article 11 of the Nationality
Law has been approved by the Director
of Immigration. |
| (ii) |
For a HKSAR permanent resident who
acquired the status by virtue of paragraph
2(d) of Schedule 1 to the Immigration
Ordinance, his permanent residency
status would be lost if he has been
absent from Hong Kong for a continuous
period of not less that 36 months since
he ceased to have ordinarily resided
in Hong Kong, as stipulated in paragraph
7(a) of Schedule 1 to the Immigration
Ordinance. |
| (iii) |
For a HKSAR permanent resident who
acquired the status by virtue of paragraph
2(e) of Schedule 1 to the Immigration
Ordinance, his permanent residency
status would be lost if he attains
the age of 21 years unless his application
made in accordance with paragraph 4(1)
of Schedule 1 to the Immigration Ordinance
has been approved by the Director of
Immigration, or if he has been absent
from Hong Kong for a continuous period
of not less than 36 months since he
ceased to have ordinarily resided in
Hong Kong, as stipulated in paragraph
7(a) of Schedule 1 to the Immigration
Ordinance, whichever is earlier. |
| (iv) |
For a HKSAR permanent resident who
acquired the status by virtue of paragraph
2(f) of Schedule 1 to the Immigration
Ordinance, his permanent residency
status would be lost if he has been
absent from Hong Kong for a continuous
period of not less that 36 months after
he obtained the right of abode in any
place other than Hong Kong and has
ceased to have ordinarily resided in
Hong Kong, as stipulated in paragraph
7(b) of Schedule 1 to the Immigration
Ordinance. |
|
| Coverage of the consultation
exercise on implementation of Article 23
of the Basic Law |
| 12. |
In line with general practice, the consultation
exercise on the Implementation of Article
23 of the Basic Law was conducted in an open
and transparent manner. The consultation
documents and relevant materials were widely
accessible to the general public, including
HKSAR permanent residents overseas. |
| 13. |
In fact, a number of submissions have been
received from places outside Hong Kong. All
submissions received by the Security Bureau
during the consultation period have been
included in the Compendium of Submissions
published on 28 January 2003, of which 3,812
submissions have been received from places
outside Hong Kong. |
| 1 Li
Shuangyuan, Jiang Xinmiao (ed.), Modern
Nationality
Law, (Changsha,
Hunan ren min chu ban she 1999) at 128-132. |
