Law

1. Citizenship Law

a. Jus sanguinis Provisions

As Hong Kong SAR (Hong Kong) is a special administrative region of China, the region does not have its own nationality law. Instead, Hong Kong operates under the concept of “One Country, Two Systems”, enshrined under the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law). In accordance with Article 18 and Annex III of the Basic Law, various national laws of China would apply to Hong Kong. China’s Nationality Law has applied to Hong Kong since 1997. As a result, children born in Hong Kong gain nationality through the same jus sanguinis structure, with children born within the territory to at least one Chinese parent gaining citizenship. As long as a citizen parent of a child born outside the territory has not settled abroad and the child has not gained another nationality at birth, the child will be a citizen. China’s citizenship legislation does not provide a definition of a stateless person.

Instead, Hong Kong operates under the concept of “One Country, Two Systems”, enshrined under the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law).

b. Citizenship Law

Provisions for naturalization in China’s Nationality Law also apply to Hong Kong, with foreign nationals or stateless persons able to apply for naturalization. Foreign or stateless persons willing to abide by the constitution and laws of China, and fulfilling one of the following criteria, can apply for Chinese nationality if they are ‘near relatives’ of Chinese nationals, they are ‘settled in China’, or have ‘other legitimate reasons’. Those whose applications for Chinese nationality are approved shall be granted Chinese nationality and may not retain foreign nationality. The Ministry of Public Security will issue a certificate when applications are approved.

There are no specific rules or judicial interpretations to clarify the scope of ‘near relatives’ and the meaning of ‘settled in China’. However, based on the Application Form for Naturalization from the official website of the National Immigration Administration, close relatives include a spouse, parent, child, or sibling. While there is persistent ambiguity and no explicit specification on the meaning of “settled in China”, the Application Form includes a specified circumstance of permanent residence. Further, on China’s government website, the listed application materials required to gain Chinese citizenship include a copy of a foreign passport and a copy of the Foreigner’s Permanent Residence Card. In order to be granted permanent residence in China, one must satisfy at least one of the listed requirements, which includes but is not limited to having investments in China for three consecutive years, holding a high career title, and residing in the country for four consecutive years, or having made an outstanding contribution to and being specially needed by China. There are currently no provisions or explanations provided for what may constitute ‘other legitimate reasons’. The requirement to show a copy of the applicant’s passport in the application may act as a barrier to stateless persons who often do not have passports. There is no simplified or expedited procedure for stateless persons or refugees.

The requirement to show a copy of the applicant’s passport in the application may act as a barrier to stateless persons who often do not have passports. There is no simplified or expedite procedure for stateless persons or refugees.

As Hong Kong is a special administrative region of China, there is also a concept of “right of abode” in Hong Kong. Only permanent residents of Hong Kong have the right of abode, which provides a person with various rights, including the rights to land and stay in Hong Kong, as well as the rights to stand for election in accordance with the law. Hong Kong also has its own permanent resident status, stipulated by the Basic Law. Anyone found to be residing in Hong Kong without permanent residence may be deported from Hong Kong. The eligibility criteria for permanent residence in Hong Kong differs for Chinese and non-Chinese citizens.

Chinese citizens may be eligible to gain permanent residence in Hong Kong if born in Hong Kong, if they have ordinarily resided in Hong Kong for seven years continuously, or if they were born outside of Hong Kong to a permanent resident of Hong Kong. Non-Chinese citizens are eligible if they have legally entered Hong Kong, ordinarily resided in Hong Kong for at least seven continuous years, and have “taken Hong Kong as their permanent place of residence”. Non-Chinese citizens can also gain permanent residence if they are under 21 years of age and were born in Hong Kong to at least one permanent resident.

c. Dual Citizenship

Dual citizenship is not recognized in China, and as such, is not recognized in Hong Kong. Chinese citizens settled abroad who voluntarily acquire foreign nationality shall automatically lose their Chinese nationality. Foreigners who have previously held Chinese nationality may apply to resume their Chinese nationality if they have a proper reason to do so, while those approved to resume Chinese nationality may not retain their foreign nationality.

2. Treaty Ratification Status

While Hong Kong has yet to ratify the 1961 Convention on the Reduction of Statelessness or the 1951 Refugee Convention and its 1967 Protocol, it has ratified the 1954 Convention relating to the Status of Stateless Persons as well as the ICCPR, ICESCR, ICERD, CRC, and CEDAW with no relevant reservations. The 1954 Convention relating to the Status of Stateless Persons is applicable to Hong Kong as a result of Hong Kong being a British territory when Britain entered into the Convention.

Considering the potentially large number of stateless children born to refugees and asylum seekers in Hong Kong, it should be noted that as a party to the CRC, Hong Kong has committed to ensuring that every child enjoys the right to acquire a nationality. The 1954 Stateless Convention, which Hong Kong is also a party to, provides a definition for a stateless person. However, Hong Kong’s legislation does not include any such definition. Further, Article 22 of the 1954 Stateless Convention ensures that stateless persons are accorded equal treatment to nationals with respect to elementary education, which Hong Kong contravenes due to requirements of refugees, asylum seekers, and their children to periodically visit the Immigration Department, interfering with their education.

Status of Accession of International Human Rights Treaties in East Asia

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Hong Kong SAR

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Persons

According to UNHCR’s statistics, there was only one stateless person reported in Hong Kong as of 2015. There have been some journalistic articles which suggest that there are stateless children who are born to refugees in Hong Kong. However, no official statistics or reports on this situation are available. UNHCR has noted China as a country which has information regarding stateless people but no reliable data.

2. Stateless Refugee

A newspaper article in 2016 highlighted that there are growing numbers of stateless children born to refugees in Hong Kong. Many such refugees lack identification documents, which further contributes to intergenerational statelessness. Very few refugees in Hong Kong have been approved for asylum, approving only 52 of 8,000 asylum applications made between 2009 and 2016. In 2016, 580 refugee children were said to have been denied the right to abode, leaving them unable to get jobs in or to leave Hong Kong.

Causes of Statelessness

1. Lack of Legal Safeguards Against Childhood Statelessness

Like in China, a child born in the territory to two stateless parents or parents with undetermined nationality who have settled in Hong Kong will be a citizen. There are no provisions specifically addressing foundlings in the territory. Prior to the dissolution of China’s one-child policy, the country had over 500,000 (largely female) registered orphans who had been abandoned or whose parents had died. In 2021, the figure of abandoned children had reduced to 190,000, where 98% of the abandoned children in state care lived with a disability or illness.

2. Citizenship Stripping

According to the Nationality Law, there are primarily two circumstances under which a Chinese citizen can lose their citizenship: firstly, when they acquire a foreign citizenship, which results in the automatic loss of their Chinese citizenship due to China’s policy of not recognizing dual citizenship; secondly, through an application process that involves satisfying certain preconditions. The concept of citizenship stripping is not recognized as a form of punishment under the Criminal Code or any other statutes in Chinese law. At the same time, there are no provisions in China’s legislation which stipulate the renunciation process of previous citizenship in order to apply for Chinese citizenship.

3. Administrative Barriers

Hong Kong’s legislation does not stipulate the granting of asylum or refugee status. However, the government may provide limited protection to refugees in dire situations. Refugees may file for a ‘nonrefoulement claim’ which protects them from deportation, but this can lead to detention until the claim is processed. With less than one percent of claims approved, refugees may appeal the decision, but the lack of transparency of the outcome of such a decision has raised concern among members of the Hong Kong Bar Association. The requirement of refugees and asylum seekers to periodically visit the Immigration Department in person has been noted to cause disruptions in school attendance for refugee children. Of particular concern among activists is Hong Kong’s 2021 ordinance amendment which denies anyone seeking asylum from entering Hong Kong and shortens the protection timeframes for individuals at risk of deportation. The ordinance amendment also “allows immigration officers to carry guns and, in some cases, requires asylum seekers to communicate in a language other than their mother tongue”.

Under the nationality laws of China, which are applicable to Hong Kong, children born to stateless parents or parents of uncertain nationality who have settled in China are entitled to an automatic grant of nationality. However, the practical application of this law and its interaction with policies and administrative requirements fundamentally limits the applicability of this protection.

Under the nationality laws of China, applicable to Hong Kong, children born to stateless parents or parents of uncertain nationality who have settled in China are entitled to an automatic grant of nationality.

Given that the Medical Certificate of Birth generally serves as the legal and medical evidence for a person’s proof of citizenship and record of birth, the authority may require such certificate to be submitted in reviewing the application for nationality pursuant to Article 6 of the Nationality Law. Accordingly, lack of such certificate will present substantial difficulties in obtaining Chinese nationality pursuant to Article 6 of the Nationality Law in practice. In addition, the children would not be able to complete birth registration if the Medical Certificate of Birth is absent.

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