HONG KONG BNO VISA
The Hong Kong BNO visa route is a bespoke immigration route for Hong Kong British National (Overseas) citizens to live in the UK with their immediate dependants, including those without BNO status. The Hong Kong BNO visa route will open for applications in January 2021.
There will be no cap on the number of Hong Kong BNO visa applicants. Those already within the UK will be able to switch into the Hong Kong BNO visa route from January 2021. If arriving before January 2021, leave can be granted to BNOs and their dependants at the border, outside of the Rules, for 6 months.
Requirements for a Hong Kong BNO Visa
The requirements for a Hong Kong British National (Overseas) visa are broadly as follows:
- BN(O) Status: The Main Applicant must be a British National (Overseas), regardless of whether they hold a current valid passport;
- Dependency: Family members must be partner, spouses, or children under 18, with additional requirements for children over 18 and non-BN(O) adult dependant relatives;
- Residency: The Main Applicant and Dependants must be ordinarily resident in Hong Kong;
- Financial: The Main Applicant and Dependants must be able to demonstrate their ability to accommodate and support themselves in the UK for at least six months;
- Character: The Main Applicant and Dependants must have no serious criminal convictions, no behaviour not conducive to the public good, and not be subject to other general grounds for refusal;
- English: The Main Applicant and Dependants must be committed to learning English in the UK;
- TB: The Main Applicant and Dependants must each have a valid TB Certificate from an approved clinic, where necessary;
- Fees: The Main Applicant and Dependants must pay the application fee and Immigration Health Surcharge fee.
The exact requirements you will need to satisfy will vary depending on your circumstances. You may want to speak to an immigration lawyer for expert advice.
Proving BNO Status
The Main Applicant for a Hong Kong BNO visa must hold BNO Status. In families where more than one parent holds BNO status, only children will need to apply as dependants.
There is no requirement to hold a BNO passport. However, the Home Office recommends that “valid or expired BN(O) passports should be kept and submitted with an application as evidence of BN(O) status”. Details of how to apply for a BNO passport can be be found in our post: Why Hong Kong BN(O)s should renew their BNO passports.
If a BNO passport has been lost, “eligibility checks can be made using historical records held by Her Majesty’s Passport Office”.
If you do not hold a valid BNO passport and your Hong Kong BNO visa application is approved, you will still be able to travel on a valid Hong Kong Special Administrative Region Passport.
Who is entitled to BNO status?
In our post British Nationality Law: Britain’s Colonial Obligations to Hong Kong, we looked at who was entitled to BNO status. Essentially, British Dependent Territories Citizens with a connection to Hong Kong were entitled to register as British in the 10 years leading up to handover of Hong Kong. No person born after 30 June 1997 is a British National (Overseas), and the status cannot be passed by descent.
Dependent Family Members of Hong Kong BNOs
The Hong Kong BNO visa route covers “immediate family dependents, comprising spouse or partner and children aged under 18”. Dependents do not need to have BNO status.
The meaning of partners will be set out in Immigration Rules due to be published later in 2020. However, partners are usually defined in the Immigration Rules as spouses, civil partners, or unmarried partners.
For spouses or civil partners, a certificate evidencing that relationship should be provided.
For unmarried partners, the Rules ordinarily require that the couple be living together in a relationship similar to marriage or civil partnership for a period of at least 2 years. Evidence is ordinarily required to prove this cohabitation.
For children, a birth certificate, adoption certificate, or court order will be required to prove the parental relationship.
Ordinarily, under the Immigration Rules, dependent children must be under 18 at the date of application. They must not be married or in a civil partnership, must not have formed an independent family unit, and must not be leading an independent life.
Additionally, both parents must be lawfully present in the UK or being granted at the same time as the child. This is to ensure that family units remain together. Therefore, if the new Rules mirror the Rules in other places, it is possible that unless one parent is the sole surviving parent, or has sole responsibility that there will need to be serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the child’s care. Therefore, if one parent wishes to remain in Hong Kong, it may not be possible for the other parent to bring the child to the UK, even with the remaining parent’s permission. We will need to analyse the Rules once they are released to confirm this matter.
Dependent children of a BNO born after 1997, who are over 18, will not ordinarily be considered dependents. However, the Home Office has issued a policy statement in which is has stated: “We do not wish to split family units where there are dependent children over the age of 18, given the particular challenges linked to the timing of obtaining BN(O) status. In compelling and compassionate circumstances, we will therefore use discretion to grant a visa to the children of a BN(O) citizen who fall into this category and who are still dependent on the BN(O) citizen.” This suggests that the family being split, if the child were not granted entry, would in and of itself constitute a compelling and compassionate circumstance. However, the policy statement is not entirely clear on this point. It will be important to evidence how adult children are dependent on the BN(O) Main Applicant.
Elder family members such as parents or grandparents of adult BNOs will need to be BNOs themselves to be eligible under the Hong Kong BNO visa route. If they are not, “in exceptional circumstances of high dependency, other adult dependants of a BN(O) citizen applying for the visa may also be eligible at the UK Government’s discretion, considered on a case by case basis.” This could parallel the notoriously high threshold in place for adult dependant relatives of British and settled persons.
Hong Kong BNO Visa Residency Requirement
BNOs and their dependents must be ordinarily resident in Hong Kong. If they are currently in the UK, they must otherwise be ordinarily resident in Hong Kong.
“Ordinarily resident” is a term found, but not defined, in the Immigration Rules. For example, the definition of a settled person requires the person to be ordinarily resident in the UK. The Nationality Policy: Assessing Ordinary Residence provides some Guidance, applying the case of R (on the application of Shah) v Barnet London Borough Council  1 All ER 226. This considers if there is a regular habitual mode of life in a particular place for the time being, which has continued apart from temporary or occasional absences, and whether the residence is voluntary and was adopted for a settled purpose.
- a Hong Kong identity card
- a letter from an employer or education provider confirming employment or study in Hong Kong
- a Hong Kong medical card
- a voter’s card
- a visa or residence permit or other immigration documents
- an educational record, for example a school report
- a letter from the local council or a government department in Hong Kong
- tax records
- records of rent or mortgage payments.
Hong Kong BNO Visa Financial Requirement
Under the Hong Kong BNO visa route, the BNO citizen and their dependant(s) must be able to demonstrate their ability to accommodate and support themselves in the UK for at least six months.
The Home Office also provides a non-exhaustive list of evidence including:
- bank statements that show savings
- evidence of regular income that will continue whilst in the UK, such as salary, investment or pension payments
- investment details
- receipt of educational grants from overseas
- an offer of employment in UK
- income of a partner, spouse or other family member to which you have access, for example parental funding or a spouse’s salary earned through lawful working in the UK
- an offer of accommodation from family or friends.
Hong Kong BNO Visa Character Requirement
BNOs and their dependants applying for a Hong Kong BNO visa must have:
- no serious criminal convictions
- 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.
Hong Kong BNO Visa English Language Requirement
On entry, Hong Kong BNO visa applicants and their dependents do not need to show they have passed any English language test to a specific level, or have a degree taught in English. However, they will need to demonstrate commitment to learn English in the UK.
To settle in the UK after 5 years, they will likely need to meet the Knowledge of Language and Life in the UK requirements. If under 65, they will need to show they meet an English language requirement to the level of B1 of the CEFR, and pass the Life in the UK test.
TB test requirement
BNOs and their dependants must hold a current tuberculosis test certificate from a clinic approved by the Home Office. The approved test clinics can be found here.
Length of the Hong Kong BNO Visa
When applying for a Hong Kong BNO visa, there are two options in terms of length of visa:
- leave to remain in the UK for a period of five years; or
- leave to remain in the UK for an initial period of 30 months’ leave (2.5 years), renewable by a second charged application for a further 30 months (2.5 years).
Applying for 5 years’ leave from the outset, although requiring more fees upfront, is said to be likely to be more cost effective overall.
Hong Kong BNO Visa Fees
There is an application fee and an Immigration Health Surcharge fee, both payable in full at the point of submitting the Hong Kong BNO visa application.
The fee for the Hong Kong BNO visa route has not yet been established. The Home Office states that they will look at analogous routes to determine fees. Fees currently range widely for other routes: a five year visa for Tier 2 costs £1,220 for example, whereas a settlement visa for 2.5 years costs £1,523.
The Immigration Health Surcharge fee will be £624 per year in January 2021, which will be an additional £1,560 for a 30 month visa, or £3,120 for the 5 year visa.
The fee for settlement is currently set at £2,389 plus a £19.20 Biometric enrolment fee, whilst citizenship currently costs £1,206 for adult applications.
Hong Kong BNO Visa Conditions
The conditions of the Hong Kong BNO Visa are:
- Right to work in the UK in almost any capacity as an employed or self employed person, consistent with UK employment laws and subject to having the appropriate skills and qualifications
- Access to education including:
- schooling for under 18 child dependants
- education and training for young people aged 16-19
- the ability to apply for higher education courses
- Access to healthcare free at the point of use on the same terms as British residents, contingent on payment of the Immigration Health Surcharge
- No recourse to public funds
Application Process for a Hong Kong BNO Visa
When the Hong Kong BNO visa route opens in January 2021, the application process will be a digital online application. It will likely use a mobile application to verify identity. This should mean that applicants will not need to send in physical documents, or attend an interview.
Applications for a Hong Kong BNO visa can be made from any country in the world, including Hong Kong or the UK. Biometric data will need to be provided.
Those with BNO status will need to provide a photograph of their face. Their dependents who are not BNOs will need to give fingerprints as part of the process. This will likely require them to attend an application centre for this purpose.
If granted, a digital visa will be issued.
When to Apply for a Hong Kong BNO Visa
The new Hong Kong BNO visa rules will be published in the Autumn of 2020. Applications will open in January 2021.
Those in the UK will need to extend their current visa under the current Rules. They will then be able to apply to switch from within the UK from January 2021.
It is possible to travel to the UK now, before the route is fully operational. Border Force Officers can grant Leave Outside the Rules for a period of 6 months to BNOs and their accompanying dependents. They will need to show:
- BNO status – apparently Border Force Officers can access “the majority” of historical records, which suggests it is not fool proof; therefore, it would be safer to show a current or expired BNO passport;
- Ordinary residence in Hong Kong;
- Dependant’s family links to the BNO;
- Ability to accommodate and support themselves for their initial period in the UK;
- 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
Whilst in the UK with Leave Outside the Rules, BNO citizens and their dependants will be able to work and study, but not receive public funds or use the NHS for free (except for limited free services). They will therefore need to have full health insurance throughout their stay with Leave Outside the Rules.
Settlement in the UK under the Hong Kong BNO Visa route
To apply for settlement, Hong Kong BNO visa holders must have 5 continuous years of residence in the UK. It is not yet clear whether this can be combined with time spent in other immigration routes, if applicants are already in the UK with a different form of leave.
Absences of up to 180 days in any 12-month period are acceptable.
To settle in the UK after 5 years, those under 65 will likely need to meet the Knowledge of Language and Life in the UK requirements.
The currently published policy seems to require Hong Kong BNOs to apply for settlement after 5 years as it states, “If after 5 years the visa holder does not apply for settled status or is refused, they will be expected to leave the UK and may be removed.” It is not clear whether the leave can be extended if one does not meet the absence or English language and Life in the UK requirements.
British Citizenship by Registration or Naturalisation
After being settled for a year, BNOs can apply to register as British under section 4 of the British Nationality Act 1981, and adult dependents can naturalise as British.
It is worth noting that there are stricter residency requirements of no more than 450 days outside the UK during the 5 years prior to the date of application, and no more than 90 days outside the UK in the 12 months prior to the application.
Who is left out from the Kong BNO Visa?
Those British Dependent Territories Citizens who never registered as BNOs are not catered for under the new route, nor are people who moved to Hong Kong after the handover. Therefore, the Home Office only seems to accept responsibility for BNOs and their family members, but not for those who failed to register, who were likely to be the less informed or less able members in society prior to the handover. Many children born prior to 1997 were not registered as BNOs by their parents in time. They will have no recourse under the new route if they are not dependent partners of a BN(O), or adult dependent children of a BNO.
Additionally, the current policy does not cater for the youth in Hong Kong who are not dependents of BNOs. As many in this group will have been active in protests, there is the possibility of asylum (such as on the basis of political or imputed political opinion, and excessive or arbitrary punishment amounting to persecution) or subsidiary protection if they are in the UK and fear serious harm on return to Hong Kong. Depending on their circumstances, there may be other points based system routes open to them.
Finally, the route makes no mention of any recourse for the BNO or British Overseas Citizens in Hong Kong, who registered as British citizens, because they were ethnic minorities and left otherwise stateless on handover. Their family members will need to meet the arduous minimum income requirements in Appendix FM to the Rules. Ultimately, they will be doubly affected by the United Kingdom’s abandonment of them in 1997.
How our immigration barristers can help Hong Kong BNO Visa applicants
The Immigration Rules contain strict requirements in terms of the documents that must be provided in support of a Hong Kong BNO visa application. It can be helpful to get advice from an immigration lawyer in order to ensure that your application is professionally presented and technically correct.
Our immigration barristers and immigration lawyers work closely with BNO citizens and their families. Our barristers are experts in the immigration options for Hong Kong BNO citizens and will guide you through the complex Home Office Immigration Rules and policies.
We pride ourselves on being approachable and proactive in understanding and meeting our clients’ needs. We are a highly driven team, dedicated to providing clear and reliable immigration advice to investors as part of a professional and friendly service.
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Other immigration options for non-BNOs born post-1997
There are other options for non-BNOs born post-1997, for example:
- Tier 1 – an investment visa for those who have access to at least £2 million;
- Tier 2 – a work visa for highly skilled Migrants (with a new points based system implemented in the New Year lowering the skill level and requisite salary, and removing some red tape);
- Tier 4 – for students in the UK;
- Tier 5 (Youth Mobility Scheme) – is open to BNOs and to HKSARs, but note for HKSARs there are only 1000 places available in 2020.
Of the above, only Tier 1 and Tier 2 are routes to settlement in the UK. Tier 4 and 5 are merely short term solutions.