啹喀兵案的雙重測試

Limbu & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2008] EWHC 2261

首先,這分析只建基我有限的法律見解,如果要更進一步分析,如果林忌有機會寫,他會比我寫得專業。

啹喀兵居英權案,表面上與香港沒有關係,事實上,這是BNO平權運動中,其中一個奠定穩固基礎的案例。而這案例最重一點,是在ECHR Article 14運用,雖然英國法院避免直接應用非常強力的Article 14,但指出了普通法中的equality原則,可能與Article 14併用,或者單獨使用,都要受到挑戰。
# Even if Article 14 was not engaged, the common law principle of equal treatment certainly would be. Moreover, for the reasons explained by McCombe J. in Gurung, that I gratefully adopt, the common law principle is an important instrument whereby it can be determined whether a discretionary public law decision is rational. It is also clear from AL and Rudi at [5] [42] and [51] that the common law and Convention principle essentially walk hand in hand together, although the common law principle has to be applied through the public law doctrine of rationality. Thus even if Article 14 was not in play the court should enquire:

“Was it open to a reasonable SSHD properly directing herself to conclude that the differences in treatment between Gurkhas and other non UK nationals was justified by reasons of differences of distinction in their situation so as not to infringe the common law principle of equality?”

這案例最重要是在這裡,縱使ECHR Article 14在英國,只是狹義地應用於涉及ECHR保障權利的法律,如果這一干犯到普通法中的平等原則,有關行政決定都可以被視為不合理。

而Goldsmith Report以下部分,如果用這案例確立的原則分析,就算不涉及ECHR Article 14,現時BNO的待遇都可能在英國法院受到嚴厲挑戰。

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

BN(O)不獲完整英國的進入權利,己經有明確證據,官方文件承認是不公平,再加上法官對普通法equality原則的詮釋,如果英國仍然不修法,或在BN(O)待遇上作出顯著放寬,小弟相信去到法院輸的成數好高。

另一方面,在對英國貢獻上,儘管啹喀兵的總部在1997年前都在英屬香港,但法官以下對福克蘭群島居民得到英國國籍的詮釋,有可能令BN(O)平權,除了CUKC,還多一個變數:香港公務員。

Following the successful military outcome and loss of lives of the British armed forces in the service of Her Majesty in right of the United Kingdom, the nationality laws were amended and Falkland islanders became or were entitled to become full British citizens. It would be curious if the Home Office had concluded that the islanders themselves who may have stayed put for many years were regarded as having a close enough connection with the United Kingdom but those who risked their lives and limbs to bring them their freedom did not. This would seem to irrationally subvert the historic debt that the Prime Minister and the Home Secretary spoke of. Some of the present applicants are Falklands’ veterans but failed to obtain a favourable outcome from the Entry Clearance Officer.

法院認為如果福克蘭群島的人,只是被侵略,都與聯合王國有密切聯繫,那為何啹喀兵不是?這個問題會即時引發幾個疑問:

1. 曾任擔任香港皇家警察的BN(O)人士及其子女,與聯合王國本身己經構成密切聯繫,如果BN(HK)A 1990申請失敗,或他們進入英國失敗,那怎辦?
2. 情況類近的義勇軍成員,以至華裔英兵,那怎樣?
3. 香港政府公務員,如果在殖民地政府時期任職,怎處理?
4. 在1996年仍然宣誓效忠英女皇,成為英國屬土公民的人,我們怎處置?

如果這案例引申下去,就是你是英國屬土上服務過,生活過的人,都是與聯合王國本身有密切連繫,那British Nationality Act 1981的基礎根本遭到毀滅。

所以我左算右算,我都不知道英國怎維持BNA 1981以及IA 1971下去,除了平權真沒有幾多出路。

2 thoughts on “啹喀兵案的雙重測試

  1. BigDeba97 說:

    hi Martin,

    you missed a part of the verdict point 64 which states that:

    64.The example of service in the Falklands serves again to tease out lack of clarity or inconsistency in this policy. It is well-known that at the time of the Argentine invasion of the islands, the intended nationality status of most islanders on implementation of the British Nationality Act 1981 was going to be British dependent territories citizen with no automatic right of abode in the United Kingdom.

    For some random reason, the Falklands islanders are suddenly entitled to be registered as BC even after the BNA 1981. Why not the BNOs of HK? This is total racial discrimination!

  2. However, BN(O)s needs the UK ID card! Sigh!

    http://ukinhongkong.fco.gov.uk/en/newsroom/?view=News&id=6490669

    Introduction of UK ID card system (26/09/2008)

    The British Government has announced the introduction of an ID card system for those without right of abode seeking to remain in the UK for longer than 6 months.

    The first identity cards will go live on 25 November 2008, and will be issued to those without right of abode making applications to remain in the UK as a student or based on marriage or civil partnership or as an unmarried partner under the immigration rules. It will be followed by the first identity cards for UK citizens in 2009.

    The system builds on the Government’s commitment to begin issuing the first ID cards to foreign nationals from November 2008. The card’s design was presented in London on 25 September 2008.

    The new credit-card sized document will show the holder’s photograph, name, date of birth, nationality and immigration status. A secure electronic chip will also hold their biometric details, including fingerprints, and a digital facial image.

    The Home Office has confirmed that BN(O) and Hong Kong SAR passport holders will be covered by the scheme. After the system goes live in November, applicants granted permission to remain in the UK for longer than 6 months will be issued with UK ID cards. These changes will not affect those applying for entry clearance in Hong Kong – only those who make an application in the UK.

    For further information, please

    1. Download Identity Card for Foreign Nationals – General Guidance Level 1 [new window, pdf, 310KB]
    2. Link to the UK Border Agency website.
    3. Contact the Home Office Newsdesk on (44) 20 7035 3535.

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