Hong Kong Watch: BNO Q&A webinar
On 18th November 2020, Hong Kong Watch hosted a webinar on BNO and we were delighted to be joined by Layla Moran MP, Neil Jameson (Executive Director of Citizens UK), Perseus (immigration and human rights lawyer) and representative of HK_Brits who shared their insights and views on the policy during the webinar.
Below are the questions from the webinar, with answers based on what we know to date.
On Application:
Q: How long will it take to process the application?
A: There is no indication at the moment as to how long the application process would take.
On Application Criteria:
Q: “I’m currently living outside of Hong Kong on a temporary resident visa for a few months, will it void the application requirement of ‘normally live in Hong Kong’?”
A: You will need to show that you are ordinarily resident in Hong Kong. You will have to put the facts of your personal history for consideration, as it will depend on what you mean by “temporary resident visa”, and for how long you have been living there.
Q; Can an applicant use a TB screening certificate issued in August 2020 for the BNO visa application in January 2021? Given that the same certificate was used when the applicant entered the UK in August 2020.
A: The proposed Rules at the moment say that you need an in-country TB certificate if your last grant of leave was for less than 6 months, rather than the general policy website which says “6 months or less”. If you are reading the strict interpretation of the Rules, then if you were granted 6 months’ leave, this is not “less than 6 months”. There is clearly some discrepancy between the Home Office’s policy website and the Rules themselves as drafted presently.
HK 7.1. If the applicant is applying for permission to stay and:
(a) their last grant of permission was for less than 6 months; and
(b) the applicant was present in a country listed in Appendix T of these rules for more than six months immediately prior to their last grant of permission,
the applicant must provide a valid medical certificate confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in them.
Q: “I am currently in the UK. I wasn’t granted the LOTR upon entry and my BNO passport has been detained by the Home Office. Could this affect my wife’s chances of obtaining a LOTR when entering the UK in the coming months? Would I still be eligible to apply for the BNO visa in January 2021?”
A: Unfortunately, there’s not enough information for us to provide an answer. However, for example, if the BNO passport was confiscated because it is fake or obtained by deception, then the wife would also NOT be eligible unless she had her own BNO.
On Eligibility:
Q: Is there any update on the eligibility for non-BNOs who were born in Hong Kong before 1997?
A: No – apart from as BNO household dependants. The visa requires a tie to BNO status, either the applicant themselves, or part of a household which is relocating.
Q: Are non-BNOs over 18 years old who have BNO parents eligible for the application? Or under what condition can they enter the UK?
A: No, they are not eligible to apply for the BNO visa on their own. Non-BNO over 18s with BNO parents can only apply as BNO household dependants / other dependant relatives.
Q: How can BNOs bring their elderly family members (non-dependants and dependants) to the UK?
A: The Rules have dependant relatives criteria proposed.
Q: Can BNOs who are currently living in the UK apply for an ‘Elderly visa’ for their parents in January 2021? Must the parents be in the UK to apply for the 'Elderly visa'? Can the parents return to Hong Kong while the Elderly visa applications are being processed?
A: Unfortunately, there’s not enough information for us to provide a thorough answer, it would be helpful to know the basis upon which said BNO is living in the UK at present.
Q: “I was born in China, moved to Hong Kong in 1995 and have had HKID since then. My father is a Hong Konger. Am I eligible for the BNO visa application?”
A: Unfortunately, there is not enough information for us to provide an answer. The most important thing is whether you have BNO status or not.
Upon Successful Application:
Q: If the application is successful, when must the applicant arrive in the UK?
A: There is no guidance as to the time limits for travel at the moment.
Q: Must a family arrive in the UK together? In other words, can one of the parents of a family arrive in the UK later than the rest of the family members? Will there be a grace period for any parent who cannot arrive in the UK with their family because of work commitment in Hong Kong?
A: At the moment, the Rules say that the application must be made together, but it does not address the issue of travel time. Also, for families with one parent in the UK and one remaining in Hong Kong for the time being, there is no guidance on the mechanisms as to how a leave to remain application for the parent in the UK, and an entry clearance application in Hong Kong, would be done together and at the same time.
On general BNO Policy Update from the UK Gov:
Q: What is the status of the parliamentary bill given that the second reading had been postponed since July 2020?
A: A second hearing is scheduled to take place in January 2021. There will be more information available in due course.
On 5+1 pathway:
Q: Can the time spent on the tier 4 and/or tier 5 visas be counted and backdated for BNOs towards the BNO visa for ILR, same as tier2?
A: No, tier 4 and tier 5 are not immigration routes to settlement, and therefore cannot be added to BNO leave for 5+1. At least for present interpretation.
Q: “I studied in the UK for 10 years, almost 20 years ago. Will the years of study be counted towards the 5+1 BNO visa? Currently in London on LOtR.”
A: No. The 5+1 is continuous residence. You have a gap and therefore it is not continuous residency. Also, student leave (tier 4) does not count towards 5+1.
Q: Regarding children who have been studying in the UK and are also dependent of BNOs, is it possible to include the years of study when applying for BNO visas?
A: No, tier 4 and tier 5 are not immigration routes to settlement, and therefore cannot be added to BNO leave for 5+1. At least for present interpretation.
Q: Can BNO holders who have lived in the UK on a student visa prior to applying for the BNO visa in January 2021 count the earlier years in their application for ILR?
A: No, tier 4 and tier 5 are not immigration routes to settlement, and therefore cannot be added to BNO leave for 5+1. At least for present interpretation.
Q: What will happen if a BNO holder fails to apply for a settlement status after the 5-year residency period? Can the visa be renewed for another 5 years or 2.5 years which means making it 10 years or 7.5 years in total?
A: There is nothing from the UK Government at the moment to suggest that there is a maximum time grant of 5 years in total only.
Q: Do you see any possibility for BNO holders to become UK citizens in a shorter time frame instead of 5+1 years? Seeing Canada now requires one year for Hong Kongers to apply for visa and citizenship.
A: If one has been here on another route to settlement, then they can add that time towards the 5+1 requirement, so it is a possibility.
On current LOtR policy:
Q: Will the current LOtR policy be closed after the start of the BNO visa application in January 2021?
A: Likely, as the current LOtR policy is specifically for people who want to come prior to the BNO visa opening.
Q: Can a BNO visa applicant (with LOtR status) stay in the UK and wait for the visa approval?
A: Yes, a BNO visa applicant can apply for BNO visa in the UK.
Q: Can a BNO visa applicant enter the UK using LOtR after 31 January 2021 while the application is being processed?
A: Unlikely, as LOtR is only for those who want to come before the route opens. We would suggest making an entry clearance application.
Q: Are Hong Kong people only allowed to enter the UK using LOtR up to 31 January 2021?
A: The policy simply requires one to be a BNO status holder, or a dependant of one, and be ordinarily resident in Hong Kong. There is no requirement as to where you were originally from or where you were born etc.
On job seeking & working in the UK:
Q: There have been problems with employers recognising LOtR passport stamps of Hong Kongers who arrived on LOtR status. This has been causing hardships to some job seekers from Hong Kong. The problem with LOtR status is that LOtR stamps are not published in the public domain so employers don't know what they look like and the LOtR status can't be checked on the Right to Work system. Is there anything that can be done?
A: Since the Home Office / Border Force have provided the correct stamp, the Home Office / Border Force won’t do anything, as this is the choice of the employers not to employ. (Perseus very kindly asked the Border Force about this already)
Perhaps this is an awareness raising issue? But in terms of priority, this might be pretty low down considering we are already pretty much in December, and hopefully this won’t affect people for much longer since they will be applying for the visa after 31 January 2021.
Q: Can I apply for jobs in the UK before obtaining a BNO visa? How would I provide any address proof, NI number and ID number to employers if I receive a job offer?
A: There is nothing to stop one from applying for jobs in the UK before obtaining a BNO visa. Whether one will get the position is another matter, due to fears of being fined by the Home Office. Maybe employers are already not willing to employ those on LOtR even if they have the right stamp.
Q: Can BNOs start working in the UK legally without a work visa before 31 January 2021 where the new immigration rule takes place? Given if they have signed an employment contract in the UK before then.
A: If you were granted the LOtR, then yes.
Q: Can BNOs, their spouse and children join the UK armed force and work for Queen Elizabeth?
A: No idea.
On Education:
Q: Will BNO status holders and their dependants be subject to international student fees, or home student fees for higher education?
A: The short answer is that at the moment they only have access to international fees, but that our team is pushing hard for that to change.
Others:
Q: Is it possible to aggregate tier 2 Leave (2016-2018) even though that has been interrupted with two years of tier 4 (2018-2020) Leave after?
A: Unlikely, as the proposed Rules say the following:
HK 62.1. The applicant must have spent a continuous period of 5 years with permission on a route in these rules under which a person can settle, of which the most recent grant of permission must have been on the Hong Kong BN(O) route.
Note the continuous residency has to be on a route which can allow a person to settle.
Q: If people enter the UK before the BNO visa application is launched, should they have a TB check before arrival?
A: There is no requirement for a TB check for LOtR on the Home Office’s policy website for LOtR. See https://www.gov.uk/guidance/british-nationals-overseas-in-hong-kong
Q: “My current student visa will expire before the BNO visa application opens, can I stay in the UK after my student visa expires in order to apply for the BNO visa within the UK? OR whether getting a LOtR before/after my student visa expires will help me stay so that I can apply for the BNO visa within the UK? Can a student visa holder obtain LOtR?”
A: You will need to make some kind of application to extend your leave, or leave the UK and then come back in order to cover the period from expiry of student visa to application for BNO visa. See https://www.gov.uk/guidance/british-nationals-overseas-in-hong-kong
Q: Is it possible to re-open naturalisation? Before 1997, I was under 18 years old. I didn't apply for BNO even though I lived in HK for more than 7 years.
A: There is no such policy planned, although Hong Kong Bill proposes reopening BNO application.