Hong Kong British National (Overseas) BN(O) Visa Immigration Rules finally released

29 October 2020

On 22 October 2020, the UK Government finally released its Statement of Changes to the new Immigration Rules, which includes the legal framework for the new BN(O) visa route. As expected, much of what the Home Secretary previously announced in her policy statement on 22 July 2020 (covered in our previous blog) has now been incorporated into the Immigration Rules. 
 
Applicants can now apply for the BN(O) visa from 31 January 2021. All applicants applying under the BN(O) visa route will be eligible to apply for indefinite leave to remain (permanent residence) after five years’ continuous residence in the UK. As such, applicants who are eligible to apply under this route will also be on a path to obtaining British citizenship. 
 
There are two distinct routes available:    
 
  • The BN(O) Status Holder route – for BN(O) citizens ordinarily resident in Hong Kong or the UK and their dependent family members; and
  • The BN(O) Household Member route – for adult children of BN(O) citizens, born on or after 1 July 1997, and their dependent family members, provided they all form part of the same household as the BN(O) citizen and ordinarily resident in Hong Kong or the UK. 
Here are the key highlights:
 
BN(O) Status Holder route
 
  • The BN(O) Status Holder (the main applicant) must be a BN(O) citizen. The BN(O) registration scheme does not allow individuals to register as a BN(O) citizen on or after 1 July 1997 (the handover) and BN(O) status cannot be passed to a spouse/partner or children. The applicant must be aged 18 years or over, which most BN(O) citizens will be, given they would have needed to be born before 1 July 1997 to register as a BN(O) citizen.
  • The BN(O) citizen can apply with an expired BN(O) passport, provided they hold another valid passport. Therefore, there is no need to renew the BN(O) passport before submitting the application.

Dependent family members of the BN(O) Status Holder

  • Dependent family members can apply at the same time as the BN(O) Status Holder or apply to join the BN(O) Status Holder, provided they form part of the same household i.e. the dependent must normally live together with the BN(O) citizen. Therefore, it is not possible for family members to apply without the BN(O) citizen.  
  • Dependants include:
    - Partner (who must be 18 years or over), which include the spouse or civil partner. Unmarried partners can also apply if he/she has lived in the same household with the BN(O) citizen for at least two years; 
    - Children (BN(O) Household Child) under the age of 18. This will include children or grandchildren of the BN(O) citizen or their partner, provided they live in the same household. For grandchildren, there is a requirement that their parents must either be applying at the same time or have permission to be in the UK (other than as a visitor) with some exceptions as to why the grandchild cannot/should not live with their parents.  
    - It is important to note that in order for children to come to the UK with a BN(O) status holder, both parents must be coming with the child. If they do not, the parent the child is accompanying must show that they have “sole responsibility” of the child, such as legal custody following a divorce or full responsibility over the child. This means that it will not be possible for one parent to remain in Hong Kong. 

Adult Dependent Relatives

  • Adult Dependent Relatives (who must be 18 years or over) of the BN(O) Status Holder can also apply. The applicant can be the parent; grandparent; sibling; or child of the BN(O) citizen (applying as the BN(O) Status Holder) or of the partner of the BN(O) Status Holder.  However, the caveat is that the parent; grandparent; sibling or child must not be in a subsisting relationship with a partner who is not related to the BN(O) Status Holder. 
  • They would also need to evidence dependency whereby the applicant would need to demonstrate all of the following:
    - As a result of age, illness or disability  require long term personal care to perform everyday tasks; 
    - Form part of the same household as the BN(O) Status Holder applying; 
    - Be unable, even with practical and financial help, to obtain the required level of care in Hong Kong because help is not available or there is no other person who can reasonably provide care or that care is not affordable.

These are relatively difficult requirements to meet and you will find it is almost identical to the Adult Dependent Relative route for relatives of British citizens or settled people. This is somewhat expected as the UK would not have allowed the BN(O) visa route to be more lenient than those for British citizens or settled people who wish to bring their adult dependent relative to the UK. 

BN(O) Household Member route

- The BN(O) Household Member route (the main applicant) is for adult children of BN(O) citizens over the age of 18, who live in the same household as the BN(O) Status Holder. 
- The applicant must not have previously held permission as a BN(O) Adult Dependent Relative on the BN(O) Status Holder route. In order to apply under this route, the adult child will need to apply at the same time as the BN(O) Status Holder. 
- Dependents of the adult child applying as the BN(O) Household Member can also apply, which include the partner (spouse, civil partner or unmarried partner) and children (but not grandchildren unlike the BN(O) Household Child category). This stance is quite exceptional to the usual immigration principles whereby adult children are typically required to show they are not leading an independent life (i.e. not forming a family of their own). The BN(O) Household Member route will allow those adult children, who were perhaps born after 1 July 1997 and could not register as a BN(O) citizen, to move to the UK with the family.

 
Settlement (indefinite leave to remain – ILR)
 
  • All applicants under the BN(O) visa route can apply for settlement after five years’ continuous residence in the UK.
  • Continuous residence means that applicants will need to meet an absence requirement. The rule is that the applicant must not spend more than 180 days in any 12 month period outside the UK on a rolling basis during those five years towards settlement. The absence requirement would apply to all applicants applying under the BN(O) visa route, including all dependent family members – the partner, children and grandchildren. This is a change to the usual stance whereby children are typically exempt from having to meet the absence requirement for settlement. 
  • Applicants who held extant leave in the UK, and switches into the BN(O) visa route from within the UK, can combine the time already spent in the UK towards the five year period for settlement.
Other requirements
 
  • Applicants must be ordinary resident in either Hong Kong or the UK to apply.  This means that applicants who have valid long term permission to stay in the UK and live in the UK can apply to switch to the BN(O) visa route from within the UK. The meaning of ordinarily resident can attract a wide definition but, typically, visitors would not be considered ordinarily residents. In the UK, visitors seeking entry to the UK must have a genuine intention to visit the UK and leave at the end of their visit and should not intend to live in the UK for extended periods through frequent or successive visit or make the UK their main home. 
  • There is a financial requirement to be met for all BN(O) visa route applicants, unless the applicant holds extant leave in the UK for no more than 12 months. There is no specific amount that you must hold in your bank account (unlike the maintenance requirement). It is enough to show the applicant, and any dependents applying, can adequately financially maintain and accommodate themselves for at least six months. Exceptionally, BN(O) visa applicants can rely on credible promises of third party financial support as part of meeting the financial requirement, whereas this is not the case for applicants from other visa categories in these Immigration Rules changes.
  • Applicants will also need to show they have accommodation in place in the UK that is adequate, which follows the principle that the accommodation must not be overcrowded and does not contravene public health regulations. 
  • You can apply for a BN(O) visa for 30 months or 5 years.  The application fees and the Immigration Health Surcharge fees will be relative to the length of visa applied for.
  • Other requirements include paying the Immigration Health Surcharge fees for each applicant (£624 per year of the visa) and undergoing Tuberculosis testing where applicable.
In summary, the BN(O) visa route is a generous route for Hong Kong people with BN(O) status. While the BN(O) visa route is not open until 31 January 2021, it remains the case that BN(O) citizens and family members can currently apply for ‘leave outside the rules’ on entry to the UK, provided that there are no other immigration visa categories available to them and that they satisfy the requirements above. 
 
There has also been some commentary that the BN(O) visa route may not protect some of the younger generation of protesters in Hong Kong (most of whom were born after 1 July 1997) who may not have members in the family with BN(O) status. Nevertheless, the BN(O) visa route is extraordinary in comparison to recent more restrictive UK immigration policies and represents the UK’s commitment in protecting fundamental freedoms in Hong Kong.
 
While the current position is that new applications for registration as a BN(O) cannot be made beyond 1 July 1997, this is something which is currently being reviewed in a Hong Kong Bill 2019-2021 in UK Parliament so it remains possible that this status could be available to a wider group of applicants in the future. This will be covered in more detail in a further blog post. 
 

Further Information

If you wish to discuss any issues raised above or any other immigration matter, please do not hesitate to contact our immigration team.

 

About the author

Katie Newbury is a partner in the immigration team at Kingsley Napley.  She has experience across a wide spectrum of UK immigration matters. Her particular expertise includes applications made under Tier 1 of the Points Based System, complex personal immigration matters, as well as the immigration implications of international surrogacy and adoption.

 

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