China’s Nationality Law Is a Cage for Hong Kongers

Foreign passport holders risk being trapped in China by nervous authorities.

Defaced photocopies of British National Overseas passports are displayed by pro-Beijing activists as they gather outside the British Consulate General to protest against the use of BNO passports in Hong Kong on Feb. 1.
Defaced photocopies of British National Overseas passports are displayed by pro-Beijing activists as they gather outside the British Consulate General to protest against the use of BNO passports in Hong Kong on Feb. 1. Anthony Wallace/AFP via Getty Images

On Jan. 29, China declared that it would stop recognizing the British National Overseas (BNO) passport—a travel document held by more than 350,000 people in Hong Kong.

The colonial-era passport, once thought to be a relic of the 1997 Hong Kong handover, is the latest battleground between China and the United Kingdom. After Beijing imposed a controversial national security law in Hong Kong last year, the U.K. established a visa scheme that would allow the city’s BNO passport holders to become British citizens. Around 5.4 million of 7.5 million Hong Kong residents are eligible to apply.

Before 2020, most Hong Kongers did not find the BNO to be especially useful: It allowed them to enter the U.K. but not settle there. But once the visa scheme was announced, and in light of the troubling political developments in Hong Kong, the passport turned into a precious lifeboat. Emigration to the U.K. became a realistic choice for high-profile activists and ordinary people alike.

Beijing’s declaration on Jan. 29—just two days before the visa scheme was due to start accepting applications—was therefore a clear sign of retaliation. China does not take kindly to the prospect of Hong Kongers gaining British citizenship and argues that such a policy violates the historical agreement on Hong Kong’s handover signed by the U.K.

But what does it mean for Beijing to stop recognizing BNO passports, and what are the ramifications for the people of Hong Kong? Both locally and internationally, that question has caused confusion and even panic.

Beijing presents nationality as an elaborate legal question, but in practice the answer is simple. Only one rule applies: If you have ever held or could have held Chinese citizenship, you are a Chinese national unless Beijing decides you are not. And even if you were born abroad but you’re of Chinese descent, Beijing still feels as if it owns you.

On paper, Article 9 of China’s Nationality Law states: “Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.” The law works as intended in some cases, such as Chinese-born table tennis players who were naturalized as Japanese. In others, it’s spottily enforced at best—especially when it comes to rich Chinese who acquire American or Canadian citizenship but keep a link to home.

But alarmingly, the law can go out the window at Beijing’s discretion. Chinese nationality has effectively been forced on ethnic Chinese who come onto Beijing’s radar. Nationality has become a tool for authorities to claim jurisdiction—and total control—over dissidents and to threaten others who might seek lives elsewhere.

In August 2020, 12 Hong Kongers who participated in the pro-democracy protests attempted to flee to Taiwan by sea. They were intercepted by the Chinese coast guard and were detained in Shenzhen. One of them was Kok Tsz-lun, a Portuguese passport holder. The Consulate General of Portugal in Macao and Hong Kong contacted the Chinese side regarding Kok but acknowledged that China did not recognize his passport and thus consular assistance was limited and may be excluded.

This phenomenon is not new. In late 2015, five Hong Kong booksellers went missing and reappeared in mainland China later, including British citizen Lee Bo and Swedish citizen Gui Minhai. Chinese Foreign Minister Wang Yi stated that Lee was “first and foremost a Chinese citizen.” Gui allegedly applied to restore his Chinese citizenship in 2018, according to a Chinese court, but observers noted that it was unlikely for a prominent critic of China to do so voluntarily.

The same principle applies even to billionaires. In January 2017, the Chinese-born Canadian tycoon Xiao Jianhua was apparently kidnapped from the Four Seasons Hotel in Hong Kong to mainland China. A statement was then published on the front page of the Hong Kong newspaper Ming Pao, in which Xiao said he had consular protection by Canada. Despite the claim, efforts by Canadian diplomats in China to visit Xiao “have gone nowhere,” according to a report by the Globe and Mail. Xiao has not been heard from since.

The power of China’s Nationality Law does not stop at one generation.

The power of China’s Nationality Law does not stop at one generation. Ming Pao’s West Canada edition reported in June 2016 that two Toronto-born second-generation Hong Kongers, who wished to join a summer learning trip in mainland China, were denied Chinese visas after the visa center found out that their parents had been born in Hong Kong. The visa center stated that Canadian-born second-generation Hong Kongers must apply for a “travel permit” for Chinese citizens at the Consulate General in Toronto.

Hong Kong’s BNO situation will likely follow the same path. China has never considered the passport holders to be British, and even if Chinese-born Hong Kongers obtain British citizenship via the new scheme, Beijing can simply ignore the change in nationality and do what it wants. To be sure, if the BNO passport holders make it to Britain, they’ll be out of the reach of Chinese law. But even making it there may be a challenge.

This may be why Beijing rejected a proposal by the pro-establishment Hong Kong cabinet member Regina Ip, who suggested that Hong Kongers holding foreign passports should be stripped of their right to live and vote in the city after a certain cutoff date. Counterintuitive as it may sound, Beijing actually wants to keep the so-called defectors inside its tent: If they are no longer Chinese citizens, they would become truly British and out of reach of the long arm of China.

If the row between Beijing and London turns even uglier, some speculate that China could bar BNO passport holders from leaving Hong Kong, slamming a Cold War-style iron curtain down over emigrants. For Hong Kongers looking to emigrate under the new visa scheme, the best they can do is to enter and leave the city using their Hong Kong passports or Hong Kong ID cards. As long as they refrain from using their BNO passport within Hong Kong, they should still be free to travel overseas.

As for Western nations caught in the crossfire of China’s nationality quagmire, there is no good countermeasure. Two Canadians, Michael Kovrig and Michael Spavor, have been held arbitrarily in China for more than two years, likely as a retaliation against Canada’s detention of Meng Wanzhou, the deputy chair and chief financial officer of the Chinese tech giant Huawei. It would not be surprising if such a move is repeated in Hong Kong.

A jailed Hong Kong resident who holds a Canadian passport was in January asked to declare whether they were Chinese or Canadian—which was the first time this ever happened, according to the Globe and Mail. Canada has advised dual Chinese-Canadian citizens to present themselves only as Canadians at all times when questioned or detained in order to receive consular assistance. But that is the only precaution a country can take, and there is no guarantee of success—after all, the nationality of a person on Chinese soil is entirely up to Beijing.

Kris Cheng is a journalist in Hong Kong.

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