Why Hong Kong BN(O)s should renew their BNO passports

After listening to the 2 June 2020 parliamentary debate on British Nationals (Overseas), and reading the Prime Minister’s article of 3 June 2020, it occurs to me that the Foreign Secretary, Home Secretary and Prime Minister may draw an arbitrary distinction between BN(O)s and BN(O) passport holders.  For this reason, I would recommend that all persons with BN(O) status who may wish to benefit from any extension of rights apply as soon as possible for a renewal of their BN(O) passport. 

Ambiguity in Statements of Home Office, House of Commons and PM

There has been significant ambiguity in various statements made regarding extending rights for BN(O)s.

The Home Office fact sheet distinguishes between BN(O)s and those holding passports, giving different statistics for each, and states 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.” I discuss this proposal and prior statements in depth in a prior post (Proposals to Extend Rights for Hong Kong’s British Nationals (Overseas)). On its face, the statement is not limited to those holding valid non-expired BN(O) passports. 

Foreign Secretary Dominic Raab, in his House of Commons speech on 2 June 2020, is less clear in his “commitment”:

• First, he limits the arrangements to passport-holders, “So, I can tell the House now that if China enacts this law we will change the arrangements for British National Overseas passport-holders in Hong Kong”.
• Then he repeats the broader policy, “we will put in place new arrangements to allow BNOs to come to the UK without the current 6 month limit, enabling them to live and apply to study and work for extendable periods of 12 months, thereby also providing a pathway to citizenship”. 

In the debate, the lack of clarity continued as to whether it would apply to the many or to the few. Lisa Nandy (Wigan) (Lab) specifically asked, “Will it apply to the 350,000 people who hold valid passports, or to the 2.9 million who are eligible?” to which she received no reply from Dominic Raab. However, for the remainder of the debate most MPs referred to BN(O) passport holders only, or appealed explicitly for a wider opening of rights to those with and without  BN(O) status. There were also indications of an anxiety regarding opening the UK to the millions, rather than the hundred thousands. For example, Dominic Raab, said he was discussing the possibility of “burden sharing”, and that he wanted to ensure a “broader international response”. 

With regard to those who did not register for BN(O) status, or acquire a passport initially, Dominic Raab’s response was, “We need to be realistic about the volume of people that we in this country could credibly and responsibly absorb. I do not think we can have this debate without acknowledging that. The fact is, though, that we have an historic set of responsibilities, as I set out earlier, and we will live up to them”. 

Of course, the historic responsibilities surely extend not just to current passport holders, but to all BN(O)s registered historically by the end of 1997. I discuss this in depth in my post on British Nationality Law: Britain’s Colonial Obligations to Hong Kong. 

In principle, Prime Minister Boris Johnson, in his article of 3 June 2020, accepts this wider responsibility for all 2.9 million BN(O)s in Hong Kong, once they hold valid passports:

“Today, about 350,000 of the territory’s people hold British National (Overseas) passports and another 2.5 million would be eligible to apply for them. At present, these passports allow visa-free access to the United Kingdom for up to six months.

If China imposes its national security law, the British government will change our immigration rules and allow any holder of these passports from Hong Kong to come to the UK for a renewable period of 12 months and be given further immigration rights, including the right to work, which could place them on a route to citizenship.” (emphasis added)

However, we are left with a distinction between those with current valid passports, and those without. As I explain below, 2.5 million BN(O)s are eligible to apply for BN(O) passports, regardless of what happens with China and the national security law. “Any holder” (regardless of when they applied and received their current passport) appears to be able to benefit from any new Rules.

On the basis of Boris’ current proposal, those with current valid BN(O) passports should be able to enter the UK without applying for entry clearance in advance, and renew their leave. It remains unclear whether they would be on a 5-year or 10-year route to settlement. He states only that this change in the Rules “could” place them on a route to citizenship. 

Dominic Raab in his response to Tom Randall (Gedling) (Con), also suggested that this will extend to dependants of BN(O) passport-holders: “we have said that we will allow the 300,000-plus passport holders, along with their dependants, to come to the UK in the way I described”.

Clarifications on BN(O)s and BN(O) Passport Holders

This ambiguity leads me to make four clarifications on BN(O)s. 

Firstly, a person is a British National (Overseas) regardless of whether they hold a current valid passport. In the same way, a British citizen, who was born in the UK and who lived in the UK their entire life, can hold an expired British passport⁠—they are not suddenly stripped of their British citizenship. There would be widespread outrage if we were to tell British citizens with expired passports that they have fewer rights for failure to simply renew a passport, although their status in nationality law remained the same. A passport is purely a travel document. It can also helpfully confirm or evidence one’s status, but it does not confer that status.

Secondly, all BN(O)s were entitled to hold or to be included in a passport confirming their British National (Overseas) status (per section 4(2) of The Hong Kong (British Nationality) Order 1986). 

Thirdly, not only were they merely entitled, the Home Office’s own Guidance on British Nationals (Overseas) Published 14 July 2017 confirms approved BN(O) applicants for registration were in fact issued a passport describing the holder as a BN(O):

“Registration

As an application to register as a British national (overseas) was made at the same time as an application for a passport, registration in the UK was done by the Passport service. Arrangements were also made within the Order to allow governors in the British overseas territories to register people as British nationals (overseas).

Determination of applications

Where an application was approved, the holder will have been issued with a

passport describing the holder as a British national (overseas). They will not have been issued with a certificate of registration.

If you need to check whether an individual is a British national (overseas) you can contact the BNO team in Her Majesty’s Passport Office.”

Therefore, if 3.4 million persons were initially registered as BN(O)s, 3.4 million would have been issued BN(O) passports. The Home Office estimates there are currently 2.9 million BN(O)s in Hong Kong. In that case, 2.9 million people in Hong Kong are BN(O) passport-holders (current or expired). As of 24 February 2020, the Home Office additionally estimates there are 349,881 holders of BN(O) passports. By this I take it the Home Office means current valid passports. It is not clear if these persons are inside or outside of Hong Kong. Regardless, this means that there should be in excess of 2.5 million people in Hong Kong eligible to apply for renewal of their BN(O) passport. 

It is clear that Dominic Raab was a bit confused in the debate as to this distinction. He summarised the question of Alistair Carmichael (Orkney and Shetland) (LD),  as “about those who do not qualify for BNO passport status. I would just point out that we are talking about over 300,000 people who do qualify.” 

I would just point out that there is no such thing as “BNO passport status”. Nearly 3 million have BN(O) status according to the Home Office, and therefore nearly 3 million are likely to have their BN(O) passports renewed or extended upon application.

Fourthly, BN(O) status would only be lost in limited circumstances. A person who registered before 1 July 1997, who ceased to be a British Dependent Territories citizen before that date (for example by renouncing or being deprived of it), would automatically cease to be a British National (Overseas), per section 4(3) of the aforementioned Order. A person could also be deprived or could renounce their British National (Overseas) status, but should be aware if either of these happened. 

Recommendation: Apply for a BN(O) Passport 

If you or your family member registered for BN(O) status before the cut off in 1997, and have ever held a BN(O) passport, even if it is expired, I would recommend that you apply to renew it as a matter of urgency. It would be worthwhile to search through your documents from the 80s, 90s or 2000s, to find your expired passport. 

300,000 passport holders can easily become 3 million passport holders. In this climate, and particularly in light of Boris Johnson’s statement regarding “any passport holder”, I wonder how the Foreign Secretary and Home Secretary could justify an arbitrary cut-off date for extension of rights to renewal applications made now. Current valid passport-holders have merely renewed prior expired passports and any made applications now would also be renewals of prior expired passports.

If “China crosses the Rubicon”, and the new rights under debate are implemented but only extend to BN(O) passport holders (and their dependants), the surest way to secure any rights that are extended is to successfully apply for a BN(O) passport if you are eligible for one.

How to Apply for a BN(O) Passport 

To apply for a BN(O) passport from Hong Kong, please see this document from Her Majesty’s Passport Office in English or in Cantonese. 

You will need to send:

• Your “original BNO passport (except if it was lost or stolen)”. To apply online, however, you will need your “BNO passport number”, so do check to see if you have records of this if it was lost or stolen. We can also help you request certain information from HMPO
• A colour photocopy of both sides of your Hong Kong permanent identity card
• A full colour photocopy of any passports from other countries that haven’t expired (such as your HKSAR passport if you have one)
• A document dated in the last 12 months to show your address (it can be a letter from your employer, medical card, letter from your local council or a government department, visa or residence permit, education record for example a school report, or immigration documents)
• You can now use a digital passport photo (including by taking one at home)

You will need to complete an online application form, and pay for your new passport.  A standard passport costs £86 plus a £19.86 courier fee. You will need to have a person confirm your identity, and pay the postage to return your old passport.

The Service Standards for HMPO listed here are ‘to deal with 99.5% of straight forward international renewal applications within 4 weeks of receipt’. However, there may be delays at this time due to COVID-19. Please also remain aware that whether rights are to be extended is still a matter for debate and is currently contingent on China’s actions with regard to the national security legislation.

Contact our Immigration Barristers

Our immigration barristers are experts in the immigration options available to Hong Kong British National (Overseas) Citizens. If you are a Hong Kong British National (Overseas) Citizen and would like to discuss an application for a UK visa, contact our immigration barristers on +44 (0) 203 617 9173 or complete our enquiry form below.