New route to settlement in the UK opens for Hong Kong citizens

From 31 January 2021, British National (Overseas) citizens from Hong Kong and their family members will be able to apply for leave to enter or remain in the United Kingdom on the new Hong Kong British National (Overseas) (BN(O)) route.

This is a new, politically significant route to permanent residence and has emerged as a direct response to the passing in June 2020 of Hong Kong’s National Security Law. With an estimated 600,000 people from Hong Kong interested in resettling in the United Kingdom over the next two years, it looks like take up of the route will be high. Our Isaac Abraham explains the detail of the scheme.

What does the visa offer?

Successful applicants for a Hong Kong BN(O) visa will be granted leave to enter the UK (or permission to remain in the UK for those already lawfully present) for a period of either 2.5 or 5 years. BN(O) visa holders will have the right to work, study, access the NHS and effectively build a life in the UK.

Holders of the visa will be able to apply for permanent residence in the United Kingdom after five years. Crucially, this does not have to be five years solely on the BN(O) visa route but can include time spent on another ‘route to settlement’.

Who is eligible?

The new BN(O) visa route will be open to BN(O) citizens and their family members ‘ordinarily resident’ in Hong Kong or the UK. This is in recognition of the fact that applications can be made from within the UK (providing the applicant has lawful status at the time of application) or from abroad. There is no statutory definition of ‘ordinarily resident’, however case law has established the contours of what ‘ordinarily resident’ should look like.

Who is a BN(O)?

British Nationality (Overseas) Citizenship is a type of British nationality that was created in 1987 as a direct response to the imminent handover of Hong Kong from the United Kingdom to China.

Put simply, a BN(O) citizen is any individual who registered to become a BN(O) prior to 31 December 1997. It is not possible to register as a BN(O) now and there are only a tiny minority who would have acquired BN(O) status automatically (primarily those in Hong Kong who would have been rendered stateless at handover).

The question of acquiring BN(O) citizenship is distinct from the question of holding a BN(O) passport. It is entirely possible to be a BN(O) but not hold a valid BN(O) passport. Indeed, the vast majority of the 2.9 million BN(O)s do not hold a British passport and holding a valid BN(O) passport is not a prerequisite to make an application under the scheme.

Who is a family member?

The BN(O) visa route has an exceptionally wide definition of ‘family member’, certainly wider than any other UK immigration route. The following family members of a BN(O) may be eligible to apply as a dependant or a family member:

• spouse, civil partner or unmarried partner
• child (under the age of 18)
• adult child born on or after 1 July 1997 (and their spouse, or child under the age of 18)
• other family members (parent, grandparent, brother, sister, son or daughter) in exceptional circumstances where there is a high level of dependency

There are a few important nuances to be aware of when applying for family members. The first is that the BN(O) visa is actually made up of five distinct visa routes – one for the BN(O) citizen themselves, and four routes for various family members. The routes have some similarities, but they do have different requirements and so it is important to make sure that each applicant meets the distinct requirements of the route they are applying on. At the time of writing, the application form for the BN(O) visa route has yet to be published and so it is impossible to assess if the process will be automated to the degree that applicants won’t have to ‘choose’ which route they are applying under.

One of the more significant requirements is that all applicants except the parents and/or grandparents of a BN(O) citizen, must form part of the same household as the BN(O) citizen themselves. Forming part of the same household is defined quite loosely in the UK’s immigration rules as meaning ‘normally living together’. This could be a challenging requirement to meet in practice. Once in the UK, the rules make clear that dependants no longer need to form the same household to qualify for a further grant of limited leave to remain or permanent residence.

What are the other requirements?

Financial and accommodation requirement

A majority of applicants will have to demonstrate that for the first six months of their time in the United Kingdom they, and any dependants, will be able to adequately maintain and accommodate themselves without access to public funds (i.e., state benefits). The exception to this is applicants who have been living in the United Kingdom for 12 months at the date of application – the rules are clear that these applicants will automatically meet the financial requirements.

The ‘adequate maintenance and accommodation’ requirement is one that immigration practitioners will be well-versed in but one that applicants may find confusing. It effectively requires that once housing costs are subtracted from the funds that will be available to an applicant over the first six months, they are able to demonstrate that they have an amount equivalent or greater to the amount an equivalent sized British family would receive on Income Support.

A significant variation from the adequate maintenance and accommodation requirement applied to other UK immigration routes is that applicants can rely on credible offers of third-party support to meet this requirement. It looks likely that applicants will also be able to rely on cash savings, current income from employment in the UK, and other sources of income (for example rental income).

TB Test Requirement

Applicants living in Hong Kong will be required to provide a valid tuberculosis tests from a recognised clinic. Applicants within the UK who were last given permission to stay in the UK for 6 months or less must also provide a TB test certificate. Only applicants who have provided a TB certificate before and have been given permission to stay for over six months are exempt from this requirement.

Suitability Requirement

Applicants will have to demonstrate that they are ‘suitable’, as defined by the UK’s immigration rules. Applicants will generally not be suitable if they are within the UK without lawful status (or on immigration bail). The suitability requirement may also affect those with a criminal record, a poor immigration history or those who are otherwise deemed of ‘poor character’.

How much does it cost and how will the application process work?

Applications can be made for either a 2.5 year visa or a 5 year visa. The difference between the two visas is cost, as the requirements for either are identical. A 2.5 year visa will cost £180 per applicant and a 5 year visa £250 per applicant.

Applicants will also be liable to pay an Immigration Health Surcharge. This is a charge levied on migrants which the UK government claims pays for access to the National Health Service. For adult applicants, this is £1560 for 2.5 years and £3120 for 5 years. For children under the age of 18, the surcharge is £1175 for 2.5 years and £2350 for 5 years.

The obvious benefit of the 5 year visa is that most applicants will not have to make a further application to extend their leave to remain in the United Kingdom. Rather, at the end of the five years they should be eligible to apply for permanent residence.

It is worth noting that the BN(O) visa route looks set to replace the existing system, whereby applicants could apply for leave ‘outside of the rules’ at the border. Such leave was granted for six months and was envisioned as a temporary route pending the launch of the BN(O) visa route.

Applications for a BN(O) visa cannot be made at the UK border. Valid applications must be submitted online. For applicants who hold biometric BN(O), HKSAR or EEA passports, applications will be made through a new UK Immigration: ID Check mobile app. All other applicants will have to make an application on the GOV.UK website and may need to attend a visa application center.

A note on asylum

This article is being written in the week where approximately fifty people including former lawmakers, activists, academics, lawyers and business owners have been arrested and charged under Hong Kong’s new National Security Law. As such, it would be remiss not to mention applications for refugee status (or asylum). Applications for asylum can only be made from within the UK or at a port of entry.

In November 2020 the Home Office published its first guidance note on the National Security Law for use by its asylum decision makers. The guidance makes clear the real risk of persecution that many in Hong Kong could be at risk of an account of their political beliefs, given the wide-ranging scope of the new National Security Law. The note also alludes to the chilling effect that the National Security Law has had on political expression in Hong Kong, and the well-established principle that an individual cannot be required to conceal their political opinion, if they are doing so because of well-founded fear of persecution.

Making an application for refugee status is entirely different to making an application for a BN(O) visa. Anyone who is considering making an application for refugee status should seek legal advice.

If you are a person from Hong Kong who is considering resettling in the United Kingdom please contact us for advice. Isaac is available at i.abraham@wilsonllp.co.uk or call 0208 808 7535 to find out how we can assist you