Updates, commentary, training and advice on immigration and asylum law

The Hong Kong British National (Overseas) visa

The British National (Overseas) citizens immigration route opened on 31 January 2021. This article sets out the rules for the BNO visa scheme, including recent changes. 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

Appendix Hong Kong British National (Overseas) introduced 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 five year visa. More on this later.

Before we launch into the detail, I want to highlight this statement from the introductory section of the Home Office guidance:

BN(O) status is a form of British nationality created for people from Hong Kong so they could retain a form of British nationality and a connection to the UK after the handover to China in 1997 in line with the Sino-British Joint Declaration…

The UK government introduced the Hong Kong British National (Overseas) (BN(O)) route to provide the opportunity for BN(O) status holders and certain family members to live, work, and study in the UK. This followed the imposition by the Chinese Government of a national security law on Hong Kong, in breach of the Sino-British Joint Declaration, which restricts the rights and freedoms of the people of Hong Kong

This route was created to address the specific situation of BNOs. 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 been in a relationship similar to a marriage or civil partnership for two years. Spouses and partners must meet the requirements of Appendix Relationship with Partner.

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.

Grandchildren must apply at the same time as the main BN(O) Status Holder 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 grandchild normally lives with the main applicant. This effectively prevents grandparents from moving to the UK first and then having their grandchild apply for a visa from overseas some months or years later.

However, dependent children under 18 do not need to apply at the same time as the main applicant. The requirement for dependent children are that both of the child’s parents must have permission to be in the UK (other than as a visitor) or be applying at the same time as the child.

For example, if one parent is in the UK under the BN(O) route and the other is applying at the same time as the child, the requirement would be met. This is 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 BN(O) status holder or BN(O) status holder’s dependent partner. Adult Dependent Relatives can also apply at a later date than the main 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 or of the child of a BN(O) Status Holder applying on the BN(O) Household Membership route or of the partner of a child of a BN(O) status holder applying on the BN(O) Household Member route; 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

(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 or the BN(O) Household Member or the partner of the BN(O) Household Member, 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 or the BN(O) Household Member or the partner of the BN(O) Household Member moves 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.

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 can be ordinarily resident in the UK, Isle of Man, Channel Islands or Hong Kong.

But what does “ordinarily resident” mean? The guidance defines the “features” of ordinary residence. Ordinary residence is a regular, habitual mode of life in a particular place and its continuity persists despite temporary absences. Ordinary residence may be of long or short duration, must be lawful, must have been adopted voluntarily, and must be for a settled purpose.

The guidance briefly confirms that periods of absence do not necessarily mean that a person’s ordinary residence has ceased. For example, a student studying abroad or a businessperson working away would usually be able to meet the requirement if they were ordinarily resident in Hong Kong prior to travelling.  

The guidance also 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 permanent ID card
  • itemised bank statements
  • a letter from an employer confirming their employment in Hong Kong
  • a visa or residence permit or other immigration documents showing residence in Hong Kong
  • an educational record, for example a school report
  • tax records
  • records of rent or mortgage payments
  • payslips
  • household or utility bills
  • valid TB certificate
  • passport stamps that show an applicant travelling from and returning to Hong Kong for travel overseas

The Home Office nationality policy guidance on assessing ordinary residence is linked in the guidance and offers more detailed information for complex cases.  

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, or where the applicant’s last grant of permission was for 12 months leave outside the rules following an unsuccessful application for the BNO route, 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.

Appendix Finance contains the specified evidence required to demonstrate funds. Credible promises of future third party support are 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, unless the applicant’s previous grant of permission was for 12 months leave outside the rules following an unsuccessful application for the BNO route.

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.

Tuberculosis 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. There is a specific webpage for UK tuberculosis testing for Hong Kong BNOs.

Suitability

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.

Applicants who are applying from within the UK must not be in breach of the immigration laws (except where paragraph 39E applies) or on immigration bail. However, if the applicant is on immigration bail solely because they have claimed asylum in the UK then they can still apply.

Conditions and entitlements

Visa duration

Applicants will have the option of applying initially for either a 2.5-year visa or a five-year visa. Dependants will need to seek permission in line with the main BN(O) Status Holder applicant. However, if a dependent partner or an adult dependent relative is applying to join a main applicant at a later date, they must apply for leave in line with the main applicant but they can then be granted the full length of permission ending on a later date than the main applicant.

Dependent children are granted permission in line with the end date of their parents. However, if the parents have permissions with different end dates, the child will be granted in line with the parent who has the latest end date.

The 2.5-year visa will need to be renewed for a further 2.5 years in order to reach a total of five years’ residence in the UK. Choosing either the 2.5 or five year visa 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 £1,035 per year, per person (£776 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 and fees can increase, as we saw in February when the immigration health surcharge increased by 66%. People sometimes forget to renew, and that forgetfulness can have catastrophic consequences. Fixing in for a five year period offers greater certainty at greater financial cost. If it’s affordable, I think it’s generally sensible to take the five 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 five 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 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 are granted leave with 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 of these are prohibited public funds.

BNOs can apply to gain access to public funds where they can show that they are destitute or at imminent risk of falling into destitution. Applications to remove the ‘no recourse to public funds’ condition can be complex and, for BNOs in particular, making a successful application will be essential if they anticipate being unable to afford the fees for their extension application. More on this in the fee waiver section below.

Application process and cost

Main applicants with a chipped BNO or Hong Kong Special Administrative Region passport can apply using the 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.

All applicants will have to provide biometrics. Applications can be submitted from anywhere in the world, subject to earlier comments on ordinary residence.

Successful applicants are issued with a biometric residence permit, although all biometric residence permits are due to expire on 31 December 2024 after which they will be replaced by eVisas. Unsuccessful applicants will have a right to an internal administrative review.

Application fees for the BNO routes are cheap compared to all other UK visa routes. It costs a mere £180 for a 2.5-year visa and £250 for a five year visa. Bargain.

But that’s just the application fee. As we’ve mentioned, there is also the immigration health surcharge which is now so expensive as to undermine the fact that the application fees are so cheap. The total up-front cost for adults is:

  • £2,767.50 for 2.5 years
  • £5,425 for 5 years

Or for children

  • £2,120 for 2.5 years
  • £4,130 for 5 years

The Home Office have introduced a fee waiver process for those applying to extend their BNO permission, but its helpfulness is limited by the inclusion of some unusual additional requirements. An affordability test applies, as with most other fee waiver routes.

However, unlike other fee waivers, the affordability test will only be conducted if the applicant has already had the ‘no recourse to public funds’ condition lifted from their visa AND is in receipt of public funds. These additional requirements make the application much more difficult than other fee waivers and will inevitably prevent people who can’t afford the fees from being able to access the help they need.

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

Relevant articles chosen for you
Picture of John Vassiliou

John Vassiliou

John Vassiliou is legal director and head of immigration at Shepherd and Wedderburn LLP. His profile can be found at: https://shepwedd.com/people/john-vassiliou.

Comments