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The Hong Kong British National (Overseas) Visa

The Hong Kong British National (Overseas) Visa

Details about the visa scheme for British National (Overseas) citizens in Hong Kong have finally been published today in a policy statement. Immigration lawyers hoping for a statement of changes to the Immigration Rules will need to wait until autumn for this, but today’s statement still contains several significant developments.

The key pieces of information published today are that:

  • the route will open in January 2021 
  • BNO citizens in the UK will be permitted to switch in-country without departing from the UK
  • BNOs and their family members arriving at the UK border before January 2021 can be granted “Leave Outside the Rules” for a limited period of six months

If a BNO’s leave is expiring before the new visa route opens however, they will need to find an alternative way to extend it to bridge the gap. The opening of the route in January does not give permission to BNOs to overstay their current visas in anticipation of making an application. It does however sound like more details may yet be announced for those with imminently expiring visas such as visitors, students, or youth mobility visa holders – possibly an extension of the Leave Outside the Rules scheme.

We already know the broad basics of this new visa route: it will be a permissive five-year route to indefinite leave to remain (referred to as “settled status” in the policy statement). The new policy statement puts some flesh on these bones with further details on eligibility criteria, visa conditions and entitlements, and the application process. One significant omission from the document is cost, though it is confirmed that applicants will have to pay a visa application fee plus the Immigration Health Surcharge

Eligibility

Main applicant

The main applicant must be a BNO citizen. This immediately rules out anybody born after 31 December 1997. BNOs will not have to hold a valid BNO passport to prove their status, though applicants are encouraged to dig out any current or expired BNO passports to aid in the application process. The Home Office has downplayed the need for BNOs to apply to renew their passports, but I still think renewing now would be a good idea for any BNOs considering a UK move.

Family members

Spouses, partners, and children under the age of 18 will be eligible to apply for visas as dependants of the main applicant. Although not spelled out in the policy statement, I expect the same definitions of children and partners seen throughout the Immigration Rules will apply here too: children between the ages of 16 and 18 living an independent life may be ineligible, as might be unmarried partners who have not been living together for at least two years.

In a welcome move which acknowledges that many family units include dependent children over the age of 18, Home Office decision-makers will be permitted to exercise discretion to grant a dependant visa to adult children of BNOs. Confusingly, the document says that decision-makers will be looking for compelling and compassionate circumstances in order to exercise their discretion. As far as I can tell, in this context, compelling and compassionate circumstances will be as simple as not wanting to split up a family unit containing children over the age of 18 who are dependent on the BNO parent. This discretion will normally be limited to children born after 1 July 1997 and where the whole family is applying together as one unit.

In an even more uncharacteristically generous move, the policy also states that other adult dependant relatives of a BNO may be eligible for a dependant visa at the government’s discretion on a case by case basis. Decision-makers here will be looking for “exceptional circumstances of high dependency” which will be a more stringent test than the “compelling and compassionate circumstances” test for children over 18, but potentially a lower threshold than the current adult dependant relative rules for British and settled people.

Ordinary residence in Hong Kong

Both the main applicant BNO and their dependants must be “ordinarily resident in Hong Kong”. This includes BNOs currently in the UK who are ordinarily resident in Hong Kong. 

But what does “ordinarily resident” mean? Frustratingly, the term is not defined in the Immigration Rules. The Home Office’s nationality department has a helpful 10-page PDF document on how nationality caseworkers should assess ordinary residence. It contains an opener that will strike fear into lawyers craving certainty:

The term ordinary residence is not defined in the immigration or nationality acts and has not been defined in any Act of Parliament. 

Thankfully this is followed up with case law from the House of Lords, which puts lawyers back on firmer ground:

The leading case in this area is R v Barnet LBC ex parte Shah [1983] 1 All ER 226. The House of Lords found that the concept of ordinary residence implied: 

• ordinary residence is established if there is a regular habitual mode of life in a particular place for the time being, whether of short or long duration, the continuity of which has persisted apart from temporary or occasional absences, residence must be both: 

• a person can be ordinarily resident in more than one country at the same time, distinguishing it from domiciled 

• ordinary residence is proven more by objective evidence than evidence of an individual’s state of mind at a point in time 

Although Shah was concerned with the meaning of ordinary residence as used in the Education Acts, the decision is widely recognised as having wider application and must be followed when considering applications for nationality. 

The second point is crucial for any BNOs living outside of Hong Kong who are concerned about eligibility. Frustratingly, we will likely need to wait to read the policy guidance document that will accompany the new rules to really dig down into what evidence, if any, BNOs will be expected to produce in relation to ordinary residence. Presumably those applying from a Hong Kong address will have nothing to worry about, but others will need to look at this closely before proceeding. 

Maintenance

Applicants and their dependants will have to demonstrate that they can accommodate and support themselves in the UK for at least six months. 

No further information is given on precisely what it will take to meet this requirement. The maintenance requirement could end up similar to the current points-based system maintenance requirements at Appendix C and Appendix E where applicants must demonstrate or self-certify having a specified sum in the bank at the date of application, or it could the other way and shape up more along the lines of current family migration rules

English language

There will be no English language requirement for the initial visa, but after residing in the UK for five years, applicants for indefinite leave to remain “will require a good knowledge of the English language”. This can probably be translated as meaning applicants will have to satisfy the usual Appendix KoLL requirements for settlement: an approved and valid B1 CEFR level English speaking and listening test pass, and a Life in the UK test pass. Over 65s will be exempt.

Tuberculosis test certificate

Applicants from Hong Kong will need to supply a tuberculosis test certificate with their initial applications. Further details on tuberculosis testing in Hong Kong are published on the government website.

Criminality

Applicants must “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.” This is a standard requirement for all visa routes. Colin and Nath have a good piece on this here.

Conditions and entitlements

Visa duration

Originally we thought that applicants would obtain a visa valid for a full five years. This has now changed. The standard visa duration for BNOs and their dependants will be 30 months (2.5 years). This will need to be renewed after 2.5 years for the same period again, to take the holder to a total of five years of residence.

Unusually, applicants will also have the opportunity to request a visa for a full five years from the outset, though this will come at a higher fee. A five-year visa will likely be more economical for applicants and it will eliminate that half-way visa application from the process. If I have learned one thing as an immigration lawyer, it’s that immigrants should seek to make the least number of applications possible. Not only does this generally keep costs down, but it also reduces stress levels at each renewal point.

Many people may prefer the shorter visa duration. Crucially, the shorter duration will generate a correspondingly lower Immigration Health Surcharge payment. From 1 October 2020, a two and a half year applicant can expect to pay an Immigration Health Surcharge fee of £1,560 per person, whereas a five-year applicant would need to pay £3,120 per person. The initial capital outlay is massive and likely off-putting to those who lack the financial resources to a costly move to the UK. The shorter visa may prove to be a lifeline to many, and I welcome the option for applicants to choose their preference.

Settlement

After five continuous years of lawful residence in the UK with this visa, people will be permitted to apply for indefinite leave to remain. Indefinite leave to remain is a semi-permanent right to reside in the UK, which will lapse if the holder leaves the UK for two years or more. Indefinite leave to remain is a necessary step on the way to full British citizenship. 

To gain indefinite leave to remain, applicants must not have been absent from the UK for more than 180 days in any rolling 12-month period. Further guidance on absences can be found here. Where applicants are unable to qualify due to absences, usually it is possible to apply for a simple visa extension. It has not yet been confirmed if this will be permitted for the BNO visa route.

Work and study

Visa holders will be permitted to work in employment or self-employment. They will also be free to apply to higher education institutions to study in the UK. Children can be enrolled in state schools.

Access to public funds

Like the majority of other visa holders, BNOs will have no recourse to public funds. This means that despite their earnings being taxed in the same way as any other UK resident, they will be prohibited from accessing financial support from the state. A full list of prohibited benefits is available here.

Crucially, access to the National Health Service is permitted – it is not a prohibited public fund.

Application process 

The application process is set to mirror the digital process deployed by the EU Settlement Scheme. That scheme has broadly been considered a success, so this should be good news for applicants. Applicants should not have to send physical documents anywhere or attend interviews. It is likely they will scan their passport and provide facial images using a Home Office app on their mobile phones. This will then be linked up to an online application form which will be submitted on the government website. 

All applicants will have to provide facial biometrics. BNO citizens will not be required to provide fingerprints, but non-BNO dependant family members will. My reading of this is that if there are non-BNO family member applicants, a trip to a visa application centre will be unavoidable. If a BNO is applying alone however, it may be possible to submit an application without even leaving the house.

Applications can be submitted from anywhere in the world, subject to my earlier comments on ordinary residence.

In another positive move, it looks like an applicant’s BNO status will be checked by cross-referencing with Her Majesty’s Passport Office’s records.

Successful applicants will receive a digital-only visa which will be accessible online. This type of visa has caused considerable upset amongst the European community in the UK. The majority of the UK’s services are geared towards immigration status being evidenced through physical documentation. This is also true for airlines who carry passengers to the UK. Holders of a digital status will need to be prepared to be guinea pigs in this new digital system.

Border arrivals

Until the new visa route is up and running, Border Force Officers will be permitted to grant Leave Outside the Rules for six months to BNO citizens and their accompanying dependants at the UK border. This can only be granted if they do not satisfy Border Force that they are eligible for entry via another immigration route. BNOs are non-visa nationals which means they can readily travel to the UK as visitors without prior entry clearance. The Leave Outside the Rules concession remedies the inconsistency of gaining entry as a visitor with an ultimate intention to settle in the UK once the new visa route goes live. 

The statement says that arrivals will need to be able to demonstrate the following to Border Force Officers:

• that they have BN(O) status – a BN(O) passport is not required as Border Force Officers will be able to access the majority of historical records, although holding current or former BN(O) passports may make the process quicker;

• that they are ordinarily resident in Hong Kong;

• evidence of dependants’ family links to the main applicant;

• the ability to accommodate and support themselves for their initial period in the UK; and

• that they have no serious criminal convictions, have not otherwise engaged in behaviour which the UK Government deems not conducive to the public good, or be subject to other general grounds for refusal set out in the Immigration Rules.

It sounds like a lot of evidence will be needed at the border. I would expect an expanded policy guidance document on Leave outside the Rules for BNOs to elaborate on this. In the meantime I strongly recommend any potential arrivals turn up armed with sufficient documentary evidence to prove all of the above bullet points, translated into English where necessary.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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