China’s approval of the national security law signals the premature end to Hong Kong’s autonomy

29 May 2020

China has now approved its controversial national security law for Hong Kong, further tightening its political control over the city’s special administrative region status. 

Hours before its approval, the United States implied it would revoke the special status conferred on Hong Kong for its trading and economic privileges, not that it made Beijing flinch. In fact, the legislation was passed at god-speed at China’s annual session of the National People’s Congress on 28th May 2020, bypassing Hong Kong legislature. The headline of the security law is to suppress subversion, secession, terrorism and seemingly any acts that might threaten national security in Hong Kong. In the coming weeks, Beijing will be fine-tuning the details of the legislation, which will determine the final fate of Hong Kong’s autonomy (or lack of it).

While some view the implementation of the security law would help dissolve the tension built up by months of protests in Hong Kong and help the city return to normality, much of the world has condemned it with the International Bar Association and the International Bar Association’s Human Rights Institute marking this as an ‘unconscionable’ threat to judicial independence in Hong Kong. In the last week, brave protestors of Hong Kong have re-emerged on to the city’s streets, despite COVID-19 worries hanging in the air, flooding street corners of Hong Kong with cries of despair, anger and frustration to the law being proposed (imposed). There is a bleak realisation that what is left of their freedom of expression, once preserved in the city’s Basic Law, is quickly evaporating before them:–

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions; and to strike. (Article 27)”

Many view this to be the final nail in the coffin for Hong Kong’s ‘one country, two system’ constitution. China’s act of defiance to worldwide outcry in passing the law clearly shows its intent to dishonour its handover agreement with Britain.

So, what is the UK doing in response?

There is certainly sympathy and support in the UK to respond to the ever growing infringement by China on Hong Kong’s autonomy. The UK’s Foreign Secretary, Dominic Raab, has recently indicated that, if China continues to impose its security laws on Hong Kong, the UK would be prepared to allow BN(O) passport holders to stay in the UK for a period of up to 12 months (where currently BN(O) passport holders are only permitted to visit the UK for up to six months). Some have reacted disappointingly that the UK was not prepared to go further in granting full citizenship rights to BN(O) passport holders as Dominic Raab’s proposed concession would only allow an extended UK visit – this does not mean BN(O) citizens could start working in the UK.

In fact, having BN(O) status does not offer holders any preferential treatment under UK immigration and nationality laws. BN(O) passport holders do not have the same rights as “full” UK passport holders. There is no automatic “right of abode” – i.e. you cannot live and work in the UK without first obtaining a UK visa. You cannot pass your BN(O) status to your spouse or children so, naturally, the number of Hong Kong citizens with BN(O) status are dwindling. Prior to 1997, there were around 3.4million BN(O) passports in circulation. Now, there is around 315,000 valid BN(O) passports.

Earlier this year, there were some suggestion that the UK government may be prepared to grant refuge to Hong Kong citizens who hold BN(O) status. A Hong Kong Bill is currently going through UK Parliament. The Bill would give those Hong Kong citizens with BN(O) status a “right of abode” in the UK so that BN(O) passport holders could enter the UK and live and work in the UK without restrictions.  

At present, this Hong Kong Bill is scheduled for its second reading in the House of Commons in September 2020 so, unless the UK receives enough pressure to pass the bill more quickly, it may be a long time until it becomes UK law (if it would even get to that stage). In the interim, what visa options are there for those living in Hong Kong who wish to relocate permanently to the UK?

Tier 1 (Investor) visa 

For those who have at least £2million GBP available to invest in the UK, this visa option would allow individuals to relocate to the UK with their partner and under 18 children. Provided the investments are made and in place throughout, you could apply for indefinite leave to remain after five years or sooner if your investments are £5million or £10million.

Start-up/ Innovator visa

Individuals who have an innovative, viable and scalable business proposal could apply under the Start-Up or Innovator visa category to set up in business in the UK. You will need to get an endorsement first to one of the designated Endorsing Bodies and you will need £50,000 GBP available to invest into that business. You do need a robust and original business idea to get your endorsement though. You can apply for indefinite leave to remain after spending three years if you are an Innovator applicant and your spouse and children can apply after spending five years in the UK.

Global Talent visa

If you are a recognised expert in the field of either: (1) arts and culture, (2) science and medicine, (3) engineering, (4) humanities, (5) digital technology or (6) you are a research applicant – you could apply on the basis of your expertise, provided you can evidence this through backing of experts in your field. You will need to get an endorsement first before applying for the visa by applying to the relevant designated Endorsing Body in your field. Depending on your expertise level, you may be able to apply for indefinite leave to remain after spending three years in the UK, otherwise, after five years.  

Tier 2 visa

It remains that you can apply for a job in the UK and have your employer sponsor you to come to the UK. Your salary must be at a certain level and the job must be a ‘skilled’ position. Your family can join you and you can all apply for indefinite leave to remain after spending five years in the UK.

Sole representative visa 

If you are a senior employee of a Hong Kong or overseas business, you could apply to set up a branch of that business in the UK. The Hong Kong or overseas business will need to continue trading while you are setting up your subsidiary in the UK. Your family can apply with you and you will be able to apply for indefinite leave to remain after five years.

British citizen family members

If you have a family member who is British, you may have a claim to British citizenship. Otherwise, you could apply to relocate to the UK with that family member, provided you meet the financial requirement.

About the author

Jessica Jim is an associate in our immigration team with experience advising on all aspects of UK immigration, nationality and European matters. She has particular expertise in advising entrepreneurs and acts for many high net worth individuals and families, particularly those from the Asia-pacific region. Jessica is a fluent Cantonese speaker and speaks some Mandarin.

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