Proposals to Extend Rights for Hong Kong’s British Nationals (Overseas)

It is welcome news that British National (Overseas) citizens in Hong Kong could have their rights to remain in the UK widened.   

The Rationale for extending the rights of Hong Kong British National (Overseas) citizens

These reports and announcements come amidst China’s adoption of the “Decision of the National People’s Congress to Establish and Improve a Legal Framework and Enforcement Mechanism for Safeguarding National Security in the Hong Kong Special Administrative Region”, which was passed on 28 May 2020 (with a vote of 2878 to 1, with 6 abstentions). This authorises the Standing Committee of the National People’s Congress to promulgate a national security law in Hong Kong. 

The UK’s position is that such legislation would violate the UN-registered Sino-British Joint Declaration of 1984, and undermine the One Country, Two Systems framework. The Joint Statement of the UK, Canada, Australia and the US, states that  “Direct imposition of national security legislation on Hong Kong by the Beijing authorities, rather than through Hong Kong’s own institutions as provided for under Article 23 of the Basic Law… It also raises the prospect of prosecution in Hong Kong for political crimes, and undermines existing commitments to protect the rights of Hong Kong people”.

In recent press statements, the UK Foreign Secretary, Dominic Raab, and Home Secretary, Priti Patel, have outlined what the UK’s response might be to its imposition: permitting British Nationals (Overseas) to apply for leave to stay in the UK for an extendable period of 12 months. The Home Office states it has been “working in close cooperation with the Foreign and Commonwealth Office on this unprecedented step, and will make more information available in due course.”

Current Rights for BN(O)s

Many Hong Kong Special Administrative Region citizens of the People’s Republic of China are British Nationals (Overseas). In a separate post, I have detailed the history as British Nationality law relates to Hong Kong. In short, if you did not apply to be a British National (Overseas), by the end of 1997, you cannot now obtain this status.

British Nationals (Overseas) (BN(O)s) are not the same as British citizens, and they do not have the same rights. In particular, they do not have right of abode in the United Kingdom, which would render them free to live in, and to come and go into and from, the United Kingdom without let or hindrance (under section 1(1) of the Immigration Act 1971). Therefore, they remain subject to immigration control. 

However, there are certain advantages given to those holding BN(O) status, even prior to any proposed amendments to the immigration laws:

• Firstly, under paragraph 23B of the Immigration Rules, a person who is a British National (Overseas) has the right to be granted leave to enter on arrival in the UK, for a period not exceeding 6 months. The purpose of their coming to the UK must not require prior entry clearance under the Rules. Therefore, they can easily enter as a standard visitor on arrival, without making any application in advance.
• Secondly, British Nationals (Overseas) aged 18 to 30, with savings of £1,890, who do not have child dependants, are also currently eligible for the Tier 5 (Youth Mobility Scheme). This permits them to live and work in the UK for up to 24 months. Hong Kong Special Administrative Region (HKSAR) citizens who are not BN(O)s are also eligible. Chinese non-HKSAR citizens are not eligible. 
• Thirdly, British Nationals (Overseas) are also able to receive consular assistance and protection from UK diplomatic posts.

The Home Office estimates there are 349,881 holders of BN(O) passports, and around 2.9m BN(O)s currently in Hong Kong. Details on how to apply for a BN(O) passport can be found here. Obtaining the passport may be a necessary step for BN(O)s to benefit from any amendment to the Immigration Rules.  

Extension of Current Rights to Stay for Hong Kong British National (Overseas) citizens

As of now the Home Office and Government’s promises are vague and contingent. The “UK government will explore options to allow BN(O)s to apply for leave to stay in the UK, if eligible, for an extendable period of 12 months.” 

BBC is reporting Dominic Raab as having said, “If China continues down this path and implements this national security legislation, we will remove that six month limit and allow those BNO passport holders to come to the UK and to apply to work and study for extendable periods of 12 months and that will itself provide a pathway to future citizenship”.

Notably, it appears from the statement that this change in laws is contingent upon China following through with its new security law. 

A speculative interpretation of the Home Office’s wide drafting, for what this could mean in practice, could be that a BN(O) who was granted 6 months leave to enter on arrival, could possibly make an application for 12 months “leave to stay” (which should mean an application for leave to remain), within the UK and without having to return to Hong Kong. It appears that this will confer the right to study or work. Therefore, the conditions on the leave granted will also be widened.

Pathways to British Citizenship

It is not clear how that will “itself” provide a pathway to future citizenship. Most routes to settlement in the United Kingdom, such as Tier 2 (General) for skilled workers, or Tier 1 (Investor), or Tier 1 (Entrepreneur), are 5-year routes to settlement in the United Kingdom. Many BN(O)s already contribute to the United Kingdom’s labour force and economy through these routes. 

However, unless a specific route to settlement is created for these BN(O)s, they would have to acquire 10 years of continuous and lawful residence (likely extending their 12-month grants 9 times) before they could settle on the basis of long residence. Unless married to a British citizen, BN(O)s would then need a further year before they would be eligible to apply for British citizenship.

Under section 4(2) of the British Nationality Act 1981, BN(O)s who have lived in the United Kingdom for a 5-year continuous period, once they had obtained indefinite leave to remain in the United Kingdom and held it for 12 months, subject to meeting the other requirements, can apply to register by entitlement as British citizens.

The position remains entirely unclear as to how the Government will cater for the children and partners of BN(O)s, who may not hold that nationality in their own right. Surely the United Kingdom’s obligation to British Nationals (Overseas), extends to their immediate family members. One could go further, and suggest that BN(O)s ought to be automatically offered the right of abode in the United Kingdom, which has been denied to them by British nationality law. 

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