Explainer: Understanding the UK's new BNO policy

We are grateful to Perseus, an immigration and human rights lawyer, who has compiled the following explainer on today’s announcement of the details of the new BNO scheme.

Please note that this document only seeks to collate in an easy to understand format the information which is available and is not to be seen as legal advice.  Readers should not make decisions based on this document, and should seek independent legal advice about their specific situation.

Background

  • The full policy statement from the Home Office sets out some changes to what we have already heard from the Home Office and the Foreign Office, and so this document aims to provide a summary of how the scheme might look based on present information.

  • Quotes from the policy statement will be in italics for ease of reference.  If a quote is taken from another policy statement, this will be clearly indicated.

Eligibility criteria for the BNO scheme

  • The scheme will be open to BNOs and their immediate family members, even if those immediate family members are not BNO status holders themselves.  “Immediate family members” are defined as “spouse or partner and children aged under 18”.

  • Applicants do not need to have a current BNO passport, but they must have registered for BNO status between 1987 and 1997 (registration for BNO status ended on 01.07.1997).

  • In “compelling and compassionate circumstances”, the Home Office may consider those offsprings of BNO status holders who are over aged 18, observing that these offsprings may not have BNO status purely due to being “born after 1997 (so are not [BNO status holders]) and are over 18”.  There will be a discretion to grant a visa to offsprings of BNO status holders who were born after 1997 and are now over 18, but who are still dependants of a BNO status holder parent.  This discretion will ordinarily be limited to those born after 1997, still being dependants of a BNO status holder parent, and applying together as a family unit.

  • Other cases of “high dependency” adult dependants of BNO status holders may also apply under a discretion, but this will be considered on a case-by-case basis.  This would mean that the BNO status holders who are looking after elderly non-BNO status parents may be able to apply for their parents under a discretion under this scheme.

  • The Home Office has indicated that the following requirements will also need to be met:

    • be ordinarily resident in Hong Kong, which includes those currently in the UK but who are ordinarily resident in Hong Kong;

    • be able to demonstrate their ability to accommodate and support themselves in the UK for at least six months;

    • demonstrate a commitment to learn English in the UK where appropriate – on entry, there will be no English language requirement but applicants will require a good knowledge of the English language if they choose later to make an application for settled status (indefinite leave to remain) after five years;

    • hold a current tuberculosis test certificate from a clinic approved by the Home Office;

    • pay a fee for the visa and the Immigration Health Surcharge both payable in full at the point of the visa application; and

    • 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.

Ordinarily resident in Hong Kong

There is no definition of “ordinarily residence”, but the Home Office has a policy on assessing “ordinary residence” (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655489/Nationality-policy-assessing-ordinary-residence-v2.0EXT.pdf), which states the following:

The term ordinary residence is not defined in the immigration or nationality acts and has not been defined in any Act of Parliament. The leading case in this area is R v Barnet LBC ex parte Shah [1983] 1 All ER 226. The House of Lords found that the concept of ordinary residence implied:

  • ordinary residence is established if there is a regular habitual mode of life in a particular place for the time being, whether of short or long duration, the continuity of which has persisted apart from temporary or occasional absences, residence must be both:

  • voluntary

  • adopted for a settled purpose

  • a person can be ordinarily resident in more than one country at the same time, distinguishing it from domiciled

  • ordinary residence is proven more by objective evidence than evidence of an individual’s state of mind at a point in time

Demonstrate an ability to accommodate and support themselves for at least six months

Since the BNO scheme is operated with no recourse to public funds, this requirement is understandably present in the scheme.  Showing availability of accommodation will usually be done in terms of showing a tenancy agreement, and showing availability of support will usually be by reference to monies held in various accounts.  There is no indication about the specifics of how this is to be measured at the moment.

Visa application fees

  • The BNO scheme operates on five years’ limited leave to remain, and then the ability to apply for settlement thereafter, what many colloquially call the “5+1” approach.  The policy statement has indicated that the initial visa under this scheme can be either 30 months, renewable once to build up the full five years, or for five years outright.

  • The fees for the visas have not yet been set, but it is envisaged from the policy statement that applying straight off for five years would be better value than applying twice for 30 months.  This may help those who may not be able to afford an expensive visa right from the start, considering this fee will apply also to each dependant applying.

Serious criminal convictions, and general grounds for refusal

  • In terms of suitability, the Home Office operates various suitability criteria for visa applications based on criminality.  For example, for those applying for a spouse entry clearance, the suitability criteria in relation to criminality reads:

S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:

(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or

(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or

(c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.

S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance.

Eligibility for other Hongkongers

  • For those who are outside the eligibility scope of the BNO review, the Home Office indicates that Tier 5 Youth Mobility remains open to Hongkongers aged between 18-30, with 1,000 places available per year.  The Home Office has also indicated that under the new Points Based System will enable individuals to come to the UK in a wider range of professions and at a lower general salary threshold than in the past.

Timescale for the scheme to be implemented

  • The current timescale for the BNO scheme to be operative is January 2021.  The Home Office encourages Hongkongers to wait for January 2021 before coming to the United Kingdom.

  • However, the Home Office also acknowledges that some Hongkongers will wish to leave Hong Kong before January 2021, due to the exceptional circumstances.  In light of these unusual times, Border Force Officers have been instructed to consider granting Leave Outside The Rules for a period of six months to BNO status holders and their accompanying dependants at the UK border “if they do not satisfy Border Force that they are eligible for entry via another immigration route.”

  • It is not clear whether “dependants” in the context of this interim arrangement will also include high dependency non-BNO relatives, or those dependant offspring.

  • Those who are entering the United Kingdom before the BNO scheme becomes fully operational will need 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.

  • Please note that granting Leave Outside The Rules is a discretion, and as such the Border Force Officer can still refuse leave to enter the United Kingdom.  The discretion is NOT an automatic right for BNO status holders and their dependants to enter the United Kingdom.

Application process

  • The application process for the BNO scheme will be via a “digital online application”, and successful applicants will be issued with a digital visa.  There will be no requirement to provide fingerprint biometrics, but only facial biometrics.

  • Again to reiterate, there will be no need for applicants under this scheme to have a valid BNO passport.  However, expired passports should be kept and submitted as part of the application process.  “Where a [BNO] passport has been lost, eligibility checks can be made using historical records held by Her Majesty’s Passport Office.”

  • It is said that applications for the BNO scheme can be made from Hong Kong, United Kingdom, or elsewhere.  It should be noted that previously, in a leaked letter dated 12.06.2020 from the Home Secretary to the Prime Minister (https://twitter.com/HongKongFP/status/1272761264477859840), it was suggested that applications for the BNO scheme from within the United Kingdom would only be open for a specified period of time.

BNO status holders within the United Kingdom already

  • When the BNO scheme becomes fully operational from January 2021, BNO status holders who are already in the United Kingdom will be able to apply to switch into the BNO scheme.

  • “BN(O) citizens already in the UK whose leave is due to expire before the Hong Kong BN(O) Visa is available, should look to extend their leave in line with the rules of their existing route and then apply for the Hong Kong BN(O) Visa.”  The Home Office will publish further guidance for those whose visa may not be renewable.

  • If one’s current leave expires, there is no requirement that one has to leave the United Kingdom for Hong Kong, but one simply has to leave the United Kingdom.

Summary of conditions and entitlement of the BNO scheme

The Home Office has set out the following conditions and entitlement of the BNO scheme:

  • leave to remain in the UK for a period of five years. This will consist of an initial period of 30 months’ leave, renewable by a second charged application for a further 30 months. Alternatively, applicants will be able to apply for 5 years’ leave from the outset, upon payment of a higher fee and the Immigration Health Surcharge for the duration. Applying for 5 years’ leave is likely to be more cost effective overall;

  • the ability to apply for settlement (indefinite leave to remain) in the UK after five years’ leave under existing rules, and to apply for UK citizenship after 12 months settlement under existing rules and application processes;

  • no recourse to public funds;

  • the right to work in the UK in almost any capacity as an employed or self-employed person, consistent with UK employment laws and subject to having the appropriate skills and qualifications;

  • access to education including: 

    • schooling for under 18 child dependants; 

    • education and training for young people aged 16-19;

    • the ability to apply for higher education courses;

    • access to healthcare free at the point of use on the same terms as British residents, contingent on payment of the Immigration Health Surcharge (see above). It is right that a contribution is made by BN(O) citizens who will benefit from access to the National Health Service.

Outstanding questions

Although the policy document published today has provided further details as to how it is intended that the scheme will operate, there are still outstanding questions which need to be asked of the Government.

  • What will be the visa application fees for the 30-month BNO scheme visa, and the five-year BNO scheme visa?

  • The current policy document says that there will be a “right to work in the UK in almost any capacity”, what are the limits that will be placed upon the right to work for those in the United Kingdom under the BNO scheme?

  • Will the relevant Regulations be amended to allow those present in the United Kingdom under the BNO scheme to be treated as “home students” for the purposes of fees for higher and further education?

  • Will the Government table specific provisions to assist those who are present in the United Kingdom under the BNO scheme, and find themselves as victims of domestic abuse?

  • When will the Government issue guidance as to what BNO status holders should do if their existing leave comes to an end and there is no route for further renewal before the BNO scheme becomes operational in January 2021?

  • Can the Government clarify whether leave to remain under any other stream of the Immigration Rules will be counted towards the five years' residency for applications for indefinite leave to remain under the BNO scheme?


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