On 30 June 2020, China passed a wide-ranging new security law in Hong Kong causing the UK Government to swiftly react and offer a way out for BN(O) passport holders. The Foreign Secretary, Dominic Raab and Home Secretary, Priti Patel’s press release on 1 July provided further details on what the new immigration route may look like.
To provide some background, British Nationals (Overseas) status was created by Article 4(1) of the Hong Kong (British Nationality) Order 1986 which came into effect on 1 July 1987. Holders of BN(O) passports are permanent residents of Hong Kong who were British Dependent Territories citizens until 30 June 1997 and had registered as BN(O)s.
It is estimated that there are around 350,000 BN(O) passport holders and an estimated 2.9 million people who are eligible to obtain a BN(O) passport. BN(O) passport holders are allowed to travel to the UK as a visitor, for a period of up to six months, without the requirement to obtain a formal visa prior to their travel. Such individuals can also access consular assistance and protection from UK diplomatic posts. Unfortunately, the benefits end there for BN(O) passport holders – they remain subject to UK immigration control which means they do not have an automatic right to live or work in the UK – they effectively still require a valid UK visa which would allow them to study or work in the UK.
What is the UK proposing?
The new law imposed by China is seen by the UK Government as a breach of the 1985 Sino-British Joint Declaration. In short, when Hong Kong was handed back to China, a number of conditions were included which meant Hong Kong’s high degree of autonomy, rights and freedoms would remain unchanged for 50 years.
The UK Government have therefore proposed a new bespoke immigration route which will grant BN(O) passport holders five years limited leave to remain with the ability to live, study and/or work in the UK.
On 22 July, the Government published their policy statement which confirmed that the new Hong Kong BN(O) visa will launch from January 2021. In addition to holding BN(O) status, applicants and their dependants (spouse, partner and children under 18) must also:
- Be ordinarily resident in Hong Kong , which includes those in the UK but who are ordinarily resident in Hong Kong;
- Be able to demonstrate their ability to accommodate and support themselves in the UK for at least six months;
- Demonstrate a commitment to learn English in the UK where appropriate – on entry, there will be no English language requirement but applicants will require a good knowledge of the English language if they choose later to make an application for settled status (indefinite leave to remain) after five years;
- Hold a current tuberculosis certificate from a clinic approved by the Home Office;
- Pay the relevant fee and Immigration Health Surcharge for main applicant and dependants;
- Have no serious criminal convictions, have not otherwise engaged in behaviour which the UK Government deems not conducive to the public good, and not be subject to other general grounds for refusal set out in the Immigration Rules.
After completing five years limited leave to remain, individuals will be able to apply for Indefinite Leave to Remain and after a further 12 months, apply to naturalise as a British Citizen. Both applications for Indefinite Leave to Remain and Citizenship will be subject to their own specific criteria at the time of making those applications i.e. absences requirements, knowledge of language and life in the UK, criminality etc.
Conditions and entitlements
Once an individual and their dependants are successful with obtaining a Hong Kong BN(O) visa, they will have the following entitlements and restrictions during their period of leave:
- Leave to remain in this route will be five years. This will consist of an initial grant of 30 months’ leave which will be followed by a second extension application granting a further 30 months. There will be an option for applicants to apply for an immediate block of 5 years leave although this will incur a higher visa application fee and Immigration Health Surcharge.
- After five years continuous residence in this category, individuals will be able to make an application for settled status (Indefinite Leave to Remain) – will need to meet the rules in force at the time. Once an individual has held settled status for at least 12 months, they will be eligible to make an application for British citizenship – again will need to meet the rules in force at that time.
- No recourse to public funds – full list can be found here.
- The right to work in any capacity either as employed or self-employed.
- Access to education including:
- Schooling for under 18 child dependants
- Education and training for young people aged 16 – 19
- Ability to apply for higher education courses
Streamlined application process
Applications will be made via a digital online application which will be based on similar technology used for the EU Settlement Scheme – this means the majority of applications will be completed online without the need to send in physical documents by post or be interviewed.
All applicants will be required to provide biometric data. BN(O) citizens will not be required to submit fingerprint biometrics and will simply have to provide facial biometrics as part of the application process. Dependants of BN(O) citizens who are not BN(O) citizens themselves will need to give their fingerprints as part of the application process. Successful applicants will be issued with a digital visa.
The Home Office have confirmed that individual will not be required to apply for or hold a valid BN(O) passport – successful applicants will be able to travel on a valid Hong Kong Special Administrative Region Passport. It is advised that individuals provide either a valid or expired BN(O) passport with an application as evidence of BN(O) status as this is likely to speed up the application process.
The UK Government will introduce the new Immigration Rules this Autumn – it will become clearer at this stage what the applicable fees will be for main applicants and dependants under this new category. We will also await clarification on what the definition of a “serious criminal conviction” will mean especially given the impact on individuals who participated in previous protests.
Our Business Immigration team, lead by Sundeep Rathod, are on hand to assist those with BN(O) status or any Hong Kong nationals who do not have BN(O) status but would like advice on other UK immigration routes.