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Hong Kong Ethnic Minorities and the Minimum Income Requirement

Ethnic minorities in Hong Kong, who have registered as British citizens since 1997, are conspicuously absent from the United Kingdom’s new Hong Kong BN(O) route. Therefore, to relocate with their family members to the United Kingdom, they will face more difficult requirements than their BN(O) counterparts. To come to the UK with their families, they will need to meet the minimum income requirements contained in Appendix FM to the Rules.

Ethnic Minorities in Hong Kong 

Before 1 January 1983, there was no such thing as a British citizen. However, after that date there was a clearly multi-tiered system of citizenship. Citizens of the UK and Colonies with a connection to Hong Kong, and those born after 1983 to a parent settled in Hong Kong acquired British Dependent Territories citizenship (BDTC) through their connection to Hong Kong, which was then a dependent territory. However, having a connection to a dependent territory was not equivalent in the eyes of the law to a connection to the United Kingdom. It did not confer a right of abode.

There are a number of Hong Kong BDTCs who failed to register in time as BN(O)s. Those who were non-Chinese ethnic minorities (primarily from India, Pakistan and Nepal), who would not acquire Chinese Nationality on handover, automatically became British Overseas Citizens (BOCs) under the Hong Kong (British Nationality) Order 1986 when they automatically lost their BDTC status on 1 July 1997. The children or grandchildren of these Hong Kong BN(O)s or BOCs, if they would otherwise be stateless, may also acquire BOC status. However, neither BN(O) nor BOC status conferred a right of abode in the UK. 

However, non-Chinese ethnic minorities in Hong Kong were in a particularly dire situation as they did not gain Chinese citizenship automatically upon handover. 

Although permanent residents of Hong Kong, they would not have nationality of the country in which they lived, and although they held British Overseas Citizenship, they had no right of abode in the United Kingdom. They were left stateless but for this form of British nationality. 

Therefore, provision was made for them to register for full British citizenship under section 1 of the British Nationality (Hong Kong) Act 1997. Whether they are British by descent or otherwise than by descent will depend on whether they were BDTCs by descent or otherwise than by descent. 

A few ethnic minorities were unable to apply under this Act, either because at the time they held dual nationality whilst a minor (under the age of 18 or 21), or because they were not ordinarily resident in Hong Kong at the time. Some of these BN(O)s or BOCs lost their other nationality and were de facto stateless but for their BN(O) or BOC status. They can now register under section 4B of the British Nationality Act 1981, which was amended by the Borders, Citizenship and Immigration Act 2009. They will only be British citizens by descent.  

Minimum Income Requirement

In the new  Hong Kong BN(O) Visa, there appears to be no provision for these ethnic minorities who were granted British citizenship. It should be remembered that these British citizens were rendered de facto stateless even with their BN(O) or British Overseas Citizen status, as those forms of nationality meant little without a right of abode.

Although they now have a right of abode in the United Kingdom, and will not be subject to a five year leave to remain period prior to settling and thereafter registering as British citizens, they will face the hurdle that all British citizens abroad face in bringing their family members to the UK. If their partners are not BN(O)s, then they will need to meet the requirements in Appendix FM and Appendix FM-SE to the Immigration Rules which include the minimum income requirement. If they registered under section 4B, or if they were only BDTCs by descent and under section 1 of the 1997 Act registered as British by descent, then their children born in Hong Kong will automatically not be British citizens, and additional income will need to be shown for each child.

These British citizens will need to show a specified gross annual income of at least £18,600 to sponsor their partner, with an additional £3,800 for the first child and £2,400 for each additional child. 

9 July 2020 was the eighth anniversary of the introduction of the minimum income requirement, which has since torn families apart. It is discriminatory, classist and privileges those with significant wealth and savings. It also privileges families of certain formations, such as where the British or settled sponsor is the breadwinner. The non-British or settled partner’s overseas income is irrelevant to satisfaction of the requirement. 

If the British sponsor is overseas and wishes to return to the UK with their family, the Rules make it even more difficult. Not only must their gross annual salary exceed the relevant income threshold, they must also have a confirmed offer of salaried or non-salaried employment in the UK starting within 3 months of their return which meets the gross annual income requirement. 

Thus, if the British sponsor is outside of the UK, the simplest way to meet the Rules is to rely on savings. However, to sponsor a partner, they would require cash savings of £62,500 held for 6 months prior to the application. To sponsor a partner and two non-British children, for example, they would need £78,000 in cash savings. This would be in addition to the £1,523 for each application under Appendix FM, and the £400 (increasing very soon to £624) per year for Immigration Health Surcharge fees. 

Additionally, an article by Madeleine Sumption and Carlos Vargas-Silva in the Journal of Economics, Race, and Policy, ‘Love Is Not all you Need: Income Requirement for Visa Sponsorship of Foreign Family Members’ has shown the way in which the Minimum Income Requirement privileges male over female sponsors: 

Results suggest that, controlling for relevant socio-demographic characteristics, British working women are 30 percentage points less likely to earn enough to sponsor a non-EEA partner compared to males, while working British ethnic minorities are 7 percentage points less likely to earn enough compared to the British White group. In order for the income requirement to have the same impact on men and women’s ability to sponsor their partner, it would in theory be necessary to reduce the annual income threshold to £15,550 for British women and raise it to £24,600 for British men”.

I have seen many appeals and applications in which the British sponsor is a woman from an ethnic minority background, often with a young child, working multiple part-time jobs to try to meet the £18,600 requirement, who returned to the UK without her partner as it was too onerous to try to obtain the requisite job offer from overseas. If she fails to meet this minimum income requirement under the Immigration Rules, which the Home Office considers to be human rights compliant, she is left to rely on ‘exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child’.  This requires complex legal submissions to be made, and evidence regarding the unjustifiably harsh consequences that would ensue.

In my view, the Secretary of State, should also cater for these ethnic minority British citizens who will be left stranded in Hong Kong. Gross unfairness would result if these British citizens were subject to more difficult requirements to sponsor their Hong Kong resident dependents than BN(O)s would be under the new route. They would essentially be punished for having registered as British after having been left stateless by the United Kingdom’s handover of Hong Kong. Surely, this is not the colonial legacy the United Kingdom wishes to leave.  

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