New Immigration Rules setting up a UK visa scheme for British National (Overseas) citizens in Hong Kong were published as part of a statement of changes on 22 October 2020. These new rules had been heavily trailed in a detailed summer policy statement but still contain a few glimmering nuggets of new information.

This article sets out what we now know about the rules for the BNO visa scheme. (The Home Office abbreviation is “BN(O)”, which we will use where it forms part of the official title of a route, but otherwise stick to the slightly less ugly “BNO”.)

Overview

The shiny new Appendix Hong Kong British National (Overseas) will take effect on 31 January 2021 and introduce two separate migration routes: the BN(O) Status Holder route and the BN(O) Household Member route.

The BN(O) Status Holder route is for British National (Overseas) citizens who are ordinarily resident in Hong Kong or the UK. Dependent partners and dependent children of BNOs can also apply under this route. In exceptional circumstances, other family members with a high degree of dependency may also apply.

The BN(O) Household Member route is for adult children, born on or after 1 July 1997, of a British National (Overseas) citizen. The BN(O) Household Member, and any dependent partner or child applying under this route, must form part of the same household as the BNO citizen.

The BNO routes are all five-year routes to settlement. Applicants will have the option of applying for either a 2.5-year visa or a 5-year visa. More on this later.

Before we launch into the detail, I want to highlight this statement about the route in the explanatory memorandum:

7.196 Before the handover of the UK’s responsibilities for Hong Kong, the Government created the British National (Overseas) (BN(O)) nationality status which was opened to people in Hong Kong, through a registration process, to those who had British Dependent Territories citizenship. Now that China has breached the Sino-British Joint Declaration through implementation of its national security legislation on Hong Kong restricting the rights and freedoms of BN(O) citizens, changes are being made to the entitlements which are attached to BN(O) status. BN(O) citizens in Hong Kong are in a unique position and therefore this policy is specific to them.

The uniqueness of the route compared to other UK visas will become clear as we go through it.

Eligibility

BN(O) Status Holder route – main applicants

The main applicant must be a BNO citizen under the Hong Kong (British Nationality) Order 1986. This immediately rules out most people born after 1 July 1997 and everybody born after 31 December 1997, for reasons explained in our briefing on BNO status.

BN(O) Status Holder route – family members

Dependent family members of BN(O) Status Holders are further sub-divided into three sub-routes:

1. Dependent partner on the BN(O) Status Holder route
2. BN(O) Household Child on the BN(O) Status Holder route
3. BN(O) Adult Dependent Relative on the BN(O) Status Holder route

The first sub-route is for spouses, and unmarried partners who have lived with the main applicant for two years. As usual, spouses and partners must demonstrate their relationship is genuine and subsisting.

The second is for minor children and minor grandchildren of BN(O) Status Holders or partners of BN(O) Status Holders. The inclusion of grandchildren here significantly deviates from standard child dependent visa rules. I have not seen grandchildren included anywhere else in the Rules and I had to re-read paragraph HK 15.1.(b) several times just to be sure I wasn’t going mad. This is one of the unique features of the route.

Children and grandchildren must apply at the same time as the main BN(O) Status Holder parent or grandparent AND must form part of the same household on the date of application. The requirement to form part of the same household will be met where the child or grandchild normally lives with the main applicant. This effectively prevents a parent or grandparent from moving to the UK first and then having their child or grandchild apply for a visa from overseas some months or years later.

Both of the child’s parents must also be applying at the same time as the child, subject to the usual rules relating to sole surviving parents, sole responsibility, and serious and compelling reasons.

The third sub-route is for an Adult Dependent Relative of a BN(O) Status Holder. Applicants must be over 18 and must be the parent, grandparent, brother, sister, son or daughter of a person who is making an application for entry clearance or permission to stay as a BN(O) Status Holder or the partner of a BN(O) Status Holder at the same time as the applicant.

Where the applicant is the parent or grandparent of a BN(O) Status Holder or of the partner of a BN(O) Status Holder, the applicant must not be in a subsisting relationship with a partner unless:

1. that partner is also the parent or grandparent of the BN(O) Status Holder or of the partner of a BN(O) Status Holder; and
2. that partner is applying for entry clearance or permission to stay at the same time as the applicant.

BN(O) Adult Dependant Relatives must also:

(a) as a result of age, illness or disability require long-term personal care to perform everyday tasks; and

(b) form part of the same household as the BN(O) Status Holder who has, or is at the same time being granted, permission; and

(c) be unable, even with the practical and financial help of the BN(O) Status Holder or the partner of the BN(O) Status Holder, to obtain the required level of help in Hong Kong, if the BN(O) Status Holder or the partner of the BN(O) Status Holder move to the UK, either because the help:

(i) is not available, and there is no person in Hong Kong who can reasonably provide it; or

(ii) is not affordable.

For parents and grandparents only, the household requirement at (b) above falls away.

This brings the eligibility criteria for adult dependent relatives broadly in line with the criteria applied to relatives of British and settled people.

One interesting rule is that after being admitted as a dependant, on any subsequent application, dependants will automatically be deemed to meet the relationship requirement. This appears to allow dependants to move out of the household once in the UK but keep their visa. Contrast this to how extended family members seeking permanent residence were treated under the EEA Regulations and you will see a refreshingly sensible rule for BNO family members.

BN(O) Household Member route – main applicants

Somewhat confusingly, in addition to the three dependant sub-routes described above, there is an additional main route called the BN(O) Household Member route. This is specifically for children of BN(O) Status Holders over the age of 18 and born on or after 1 July 1997.

It is not possible to switch from the “BN(O) Adult Dependant Relative on the BN(O) Status Holder route” to the BN(O) Household Member route.

A BN(O) Household Member must, obviously, be the household member of a BNO. If they normally live together, they will be deemed to form part of the same household.

BN(O) Household Member route – family members 

Those who meet the BN(O) Household Member criteria are permitted in turn to bring their own dependent partners, spouses and children. But only children under 18 are permitted on this route, and no grandchildren allowed.

Ordinary residence in Hong Kong

An applicant for entry clearance must be “ordinarily resident in Hong Kong”. Applicants inside the UK seeking “permission to stay” (the new term for “leave to remain”) can be ordinarily resident in the UK, Isle of Man, Channel Islands or Hong Kong.

But what does “ordinarily resident” mean? Frustratingly, the term is not defined in the Immigration Rules. The main clue as to how this will be interpreted probably lies in the Home Office guidance for leave outside the Rules, which Hongkongers can get while waiting for the BNO routes to come into operation.

This guidance sets out a non-exhaustive list of documents that can be used to prove ordinary residence in Hong Kong:

• a Hong Kong identity card
• a Hong Kong medical card
• a letter from an employer or education provider confirming your employment or study
• a voter’s card
• a visa or residence permit or other immigration documents
• an educational record, for example a school report
• tax records
• records of rent or mortgage payments
• household bills

The Home Office’s nationality department has a helpful ten-page PDF document on how nationality caseworkers assess ordinary residence. Maybe we will see this expanded to relate to BNOs. 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.

Financial requirement

There is a basic financial requirement, but it is nowhere near as stringent as, say, the UK’s regular family migration rules. There is for example no minimum salary or minimum income requirement.

If the applicant is applying for entry clearance or permission to stay and has been in the UK for less than 12 months on the date of application, they will have to demonstrate that they can adequately maintain and accommodate themselves in the UK without recourse to public funds for at least six months. 

The interpretation section of the rules contains the following definition:

“Adequate” and “adequately” in relation to a maintenance and accommodation requirement means that, after income tax, national insurance contributions and housing costs have been deducted, there must be available to the person or family the level of income or funds that would be available to them if the person or family was in receipt of income support.

The new Appendix Finance will contain the specified evidence required to demonstrate funds. Credible promises of future third party support will be permitted.

If the applicant has lived in the UK for at least 12 months on the date of application, they will automatically meet the financial requirement without the need for further proof.

English language

There will be no English language requirement for the initial visa, but after living in the UK for five years, applicants for indefinite leave to remain will have to show English language ability to level B1 as specified in Appendix English Language. Applicants aged 18-65 will have to pass a Life in the UK test as specified in Appendix KOL UK.

TB testing

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. Applicants from inside the UK may still need a tuberculosis test certificate if their last grant was for less than six months and they were present in a country listed in Appendix T for more than six months immediately prior. A new webpage has been specifically created for UK TB testing for Hong Kong BNOs.

Criminality

Applicants must not fall for refusal under the general grounds for refusal, which include provisions relating to criminality and deception. This is a standard requirement for all visa routes. Colin and Nath have a good piece on this here.

Conditions and entitlements

Visa duration

Applicants will have the option of applying initially for either a 2.5-year visa or a 5-year visa. Dependants will need to seek leave in line with the main BN(O) Status Holder applicant.

The 2.5-year visa will need to be renewed for a further 2.5 years in order to reach a total of 5 years’ residence in the UK. Choosing one over the other really comes down to individual preference: the 2.5-year offering will be cheaper and will crucially only require 2.5 years’ worth of up-front Immigration Health Surcharge payment. At £624 per year, per person (£470 for children), the up-front cost is a significant consideration, especially for large families.

The obvious downside to the shorter visa is the need to renew at the 2.5-year mark. Rules can change, fees can increase. People sometimes forget to renew, and that forgetfulness can have catastrophic consequences. Fixing in for a 5-year period offers greater certainty at greater financial cost. If it’s affordable, I think it’s generally sensible to take the 5-year visa.

Settlement

One of the real surprises in this set of rules is the generous paragraph 62.1:

The applicant must have spent a continuous period of 5 years with permission on a route in these rules under which a person can settle, of which the most recent grant of permission must have been on the Hong Kong BN(O) route.

Yes, you read that correctly. Applicants in the UK who have switched to a BNO route from another route leading to settlement (for example a skilled worker visa) can combine the years spent under their previous route so that, after a cumulative total of five years, they may settle permanently. This means that, for example, someone three years into a work visa who then switches to a BNO route only needs to complete two more years of residence in the UK before becoming eligible for settlement.

Settlement applicants must meet the usual continuous residence requirements, specified in the new Appendix Continuous Residence. They must not have been absent from the UK for more than 180 days in any rolling 12-month period.

Work and study

Visa holders will be permitted to work in employment or self-employment, subject to the usual prohibition on employment as a professional sportsperson or sports coach. Study is permitted, again subject to the usual rule regarding subjects requiring approval under the Academic Technology Approval Scheme outlined in Appendix ATAS.

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, and children can be enrolled in state schools – neither are prohibited public funds.

Police registration

Any dependants who are nationals of a country listed in Appendix 2 will be granted leave subject to a police registration condition.

Application process and cost

Main applicants with a chipped BNO or Hong Kong Special Administrative Region passport will be eligible to apply using a yet-to-be-released UK Immigration: ID Check app. EEA national dependants will also be eligible to apply using the ID Check app. Alternatively, they, and others who do not hold appropriate chipped passports, can simply apply online via the specified form.

Pleasantly confounding my earlier predictions, the BNO routes are going to be dirt cheap compared to all other UK visa routes. It will cost a mere £180 for a 2.5-year visa and £250 for a 5-year visa. Bargain.

But that’s just the application fee; as we’ve mentioned, there is also the Immigration Health Surcharge. So the total up-front cost for adults will come to:

• £1,740 for 2.5 years
• £3,370 for 5 years

Or for children

• £1,355 for 2.5 years
• £2,600 for 5 years

All applicants will have to provide some form of biometrics. The summer policy statement said that BNO citizens would not be required to provide fingerprints, only a photograph. This seems to accord with the eligibility to use the ID Check app, but I expect more details about the biometric processes will arrive by 31 January 2021. Applications can be submitted from anywhere in the world, subject to earlier comments on ordinary residence.

The summer policy statement also suggested that successful applicants would receive a digital-only visa. This type of visa has caused considerable upset amongst EU citizens in the UK who want physical proof of their right to live 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. More details on whether BNO routes will receive physical or digital documents is expected before 31 January 2021.

Unsuccessful applicants will have a right to an internal administrative review.

Bridging the gap to 31 January 2020 – leave outside the Rules

Until the new visa route is up and running, the Home Office is offering six-month grants of leave outside the Rules to eligible BNOs and their dependants. Hongkongers can just turn up at the airport to get this, but must specifically ask the border officer for it. In-country applicants must apply for it on form FLR(HRO).

Applicants for leave outside the Rules will need to show evidence of their identity, their BNO status, that they normally live in either Hong Kong or the UK, and that they can support themselves financially in the UK. Dependants must evidence their family links and if seeking leave at the border, must be travelling together as a family unit.

For BNOs without a BNO passport, the Home Office may be able to check old records.

Those granted leave outside the Rules will then be permitted to switch to a BNO route from 31 January 2021.

This article was originally published in July 2020. It has been updated so that it is correct as of the new date of publication shown above.