On 21 December 2023 the Immigration Minister published a letter setting out a concession for people who wish to make an application to the Hong Kong British National (Overseas) route but who are currently in the UK without permission. A formal Ministerial Authorisation under the Equality Act 2010 has also been made and can be cited as the ‘Equality (Applying two concessions around immigration bail and overstaying relating to BN(O) applicants who previously claimed asylum) Authorisation 2023’. This came into force on 22 December 2023.

The immigration rules

Currently, Appendix Hong Kong British National (Overseas) has suitability requirements to be met, one of which is as follows:

HK 2.2. If applying for permission to stay the applicant must not be:

(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or

(b) on immigration bail.

If a person was in the UK without leave and/or had claimed asylum and been granted immigration bail, this requirement would prevent them from accessing leave in this route.

The concession

The concession applies to two categories of people. The first is those who are on immigration bail because they have a pending asylum claim. The second is people who have withdrawn their asylum claim “or it was withdrawn” (presumably this includes cases deemed withdrawn by the Home Office) and as a result been left without leave, people in this category must apply within “a reasonable period” of the withdrawal.

The letter states:

These concessions will be initially operated outside of the Immigration Rules. We have previously been clear that individuals can switch into the BN(O) route where they have a pending asylum claim and this approach ensures that continues to be the case. It will also ensure potentially vulnerable applicants are not required to return to Hong Kong and will align with our wider approach to BN(O) status holders and their family members. These authorisations will remain in place until revoked. It is intended that the first policy will be formalised in the rules at the earliest opportunity.

As at 9 January 2024, the guidance has not yet been updated to reflect this concession.

Conclusion

This is the second recent expansion of entitlements for people using Appendix Hong Kong BN(O), following on from the guidance change we reported on last month that people in this route who experience relationship breakdown cannot have their leave cancelled for that reason.