General provisions

Details about the visa scheme for British National (Overseas) citizens in Hong Kong have finally been published on 22 July 2020 in a policy statement.

The key pieces of information published today are that:

  • the new visa route will open in January 2021;
  • British National (Overseas) citizens in the UK will be permitted to switch in-country without departing from the UK;
  • British National (Overseas) citizens and their family members arriving at the UK border before January 2021 can be granted “Leave Outside the Rules” for a limited period of six months.

If a British National (Overseas) citizen’s leave is expiring before the new visa route opens however, they will need to find an alternative way to extend it to bridge the gap.

The opening of the route in January does not give permission to British National (Overseas) citizens to overstay their current visas in anticipation of making an application.

Eligibility requirements

For main applicant

The main applicant must be a British National (Overseas) citizen. This immediately rules out anybody born after 31 December 1997. British National (Overseas) citizens will not have to hold a valid British National (Overseas) citizen passport to prove their status, though applicants are encouraged to dig out any current or expired BNO passports to aid in the application process.

For dependent family members

Spouses, partners, and children under the age of 18 will be eligible to apply for visas as dependants of the main applicant. Although not spelled out in the policy statement, we expect the same definitions of children and partners seen throughout the Immigration Rules will apply here too: children between the ages of 16 and 18 living an independent life may be ineligible, as might be unmarried partners who have not been living together for at least 2 years.

In a welcome move which acknowledges that many family units include dependent children over the age of 18, Home Office decision-makers will be permitted to exercise discretion to grant a dependant visa to adult children of British National (Overseas) citizens. Confusingly, the document says that decision-makers will be looking for compelling and compassionate circumstances in order to exercise their discretion. This discretion will normally be limited to children born after 1 July 1997 and where the whole family is applying together as one unit.

In an even more uncharacteristically generous move, the policy also states that other adult dependant relatives of a British National (Overseas) citizen may be eligible for a dependant visa at the government’s discretion on a case by case basis. Decision-makers here will be looking for “exceptional circumstances of high dependency” which will be a more stringent test than the “compelling and compassionate circumstances” test for children over 18, but potentially a lower threshold than the current adult dependant relative rules for British and settled people.

Ordinary residence in Hong Kong

Both the main applicant and their dependants must be “ordinarily resident in Hong Kong”. This includes British National (Overseas) citizens currently in the UK who are ordinarily resident in Hong Kong. 

Maintenance

Applicants and their dependants will have to demonstrate that they can accommodate and support themselves in the UK for at least six months. 

No specific information is provided in the immigration rules on what documents will be required and the minimum amount of funds to show.

Knowledge of English language

There will be no English language requirement for the initial visa, but after residing in the UK for five years, applicants for indefinite leave to remain “will require a good knowledge of the English language”. This can be translated as meaning applicants will have to satisfy the usual  requirements for settlement: an approved and valid B1 CEFR level English speaking and listening test pass, and a Life in the UK test pass. Those applicants, who are over 65 years old, will be exempt.

Tuberculosis test certificate

Applicants from Hong Kong will need to supply a tuberculosis test certificate with their initial applications.

Requirements on criminality

Applicants must have no serious criminal convictions, have 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.

Visa duration

The standard visa duration for British National (Overseas) citizens and their dependants will be 30 months (2.5 years). This will need to be renewed after 2.5 years for the same period again, to take the holder to a total of five years of residence.

Unusually, applicants will also have the opportunity to request a visa for a full 5 years from the outset, though this will come at a higher fee.

A 5-year visa will likely be more economical for applicants and it will eliminate that half-way visa application from the process.

Settlement (Indefinite Leave to Remain)

After five continuous years of lawful residence in the UK with this visa, people will be permitted to apply for indefinite leave to remain.

Indefinite leave to remain is a semi-permanent right to reside in the UK, which will lapse if the holder leaves the UK for two years or more. Indefinite leave to remain is a necessary step on the way to full British citizenship. 

To gain indefinite leave to remain, applicants must not have been absent from the UK for more than 180 days in any rolling twelve month period.

Applicants for the ILR in this visa category must, in addition to the Life in the UK test, pass an English language proficiency test with a score of at least B1 according to the European CEFR scheme.

The people exempt from the above requirements are persons over 65 years of age or who have serious medical contraindications.

Work and study

Visa holders will be permitted to work in employment or do self-employment in the UK. They will also be free to apply to higher education institutions to study in the UK. Children can be enrolled in state schools.

Access to public funds

Like the majority of other visa holders, British National (Overseas) citizens will have “No Recourse to Public Funds”. This means that despite their earnings being taxed in the same way as any other UK resident, they will be prohibited from accessing financial support from the state.

Crucially, access to the National Health Service is permitted – it is not a prohibited public fund.

Application process 

The application process is set to mirror the digital process deployed by the EU Settlement Scheme.

Applicants should not have to send physical documents anywhere or attend interviews. They will need to scan their passport and provide facial images using a Home Office app on their mobile phones. This will then be linked up to an online application form which will be submitted on the government website. 

Applications can be submitted from anywhere in the world, subject to the earlier comments on ordinary residence.

Successful applicants will receive a digital-only visa which will be accessible online.

UK Border arrivals

Until the new visa route is up and running, UK Border Force Officers will be permitted to grant Leave Outside the Rules for six months to British National (Overseas) citizens and their accompanying dependants at the UK border.

This can only be granted if they do not satisfy Border Force that they are eligible for entry via another immigration route. 

The government statement says that arrivals will need to be able to demonstrate the following to Border Force Officers:

• that they have BN(O) status – a BN(O) passport is not required as Border Force Officers will be able to access the majority of historical records, although holding current or former BN(O) passports may make the process quicker;

• that they are ordinarily resident in Hong Kong;

• evidence of dependants’ family links to the main applicant;

• the ability to accommodate and support themselves for their initial period in the UK; and

• that they 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.

Our services

  • We can advise on the procedure, requirements and merits of making an application for leave to enter or remain in a Hong Kong British National (Overseas) Visa;
  • We can advise and represent our clients in making representations in support of their immigration matters;
  • We can advise and represent our clients’ dependants to seek dependant visas in line with the visa of the main applicant;
  • We can advise on the merits of an administrative review in the event of any refusal and represent clients in appeals.

Whatever the case, we are here to assist, advise and represent our clients in relation to any aspect of their immigration matters.

 

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