Analysis: The pandemic means the Home Office must be flexible when dealing with BNOs

When it was announced that China’s National People’s Congress would be legislating national security laws for Hong Kong, the United Kingdom Government responded by proposing an overhaul of its Immigration Rules in order to provide better access to British Nationals (Overseas) (“BNOs”).

The BNO status was created before the handover of Hong Kong to China in order to allow passports for those Hongkongers who chose to maintain ties with the United Kingdom. However, these passports offer no right of abode, or consular assistance, to BNO status holders when in China, including the Special Administrative Regions of Hong Kong and Macao.  The new policy changes that and offers Hongkongers a “pathway to citizenship”. The Prime Minister, Boris Johnson, wrote in an op-ed in the South China Morning Post calling this “one of the biggest changes in [the United Kingdom’s] visa system in British history”.

The United Kingdom Government subsequently published a policy statement on 22 July 2020 indicating that the BNO visa scheme will go live in January 2021, and on the same day also published a guide for BNO status holders and their dependants should they wish to leave Hong Kong before that time, a clear recognition of Hong Kong’s dire political situation. The government has put in place an immigration stream for BNO status holders and their dependants which is outside of its normal Immigration Rules, which allows BNO status holders and their dependants to wait for the BNO Visa within the United Kingdom, and work and study whilst waiting for the visa scheme to go live in the new year.

Many BNO status holders and their dependants arrived in the United Kingdom before 22 July 2020 due to fears over Hong Kong preventing BNO status holders from leaving, and this fear has been compounded by Dominic Raab, United Kingdom’s Foreign Secretary, stating there is little that the United Kingdom could do should the Hong Kong and Chinese Governments take the decision to prevent BNO status holders and their dependants from leaving Hong Kong. There were even comments by Hongkongers that the increase of reports of Covid-19 cases around the time when the National Security Law was implemented was designed to be used by the Hong Kong Government to close borders and prevent people from leaving Hong Kong.

A Hongkonger who arrived in the United Kingdom before 22 July 2020, wishing to remain anonymous, said that he himself had feared the pandemic would be used as an excuse to prevent people from leaving Hong Kong, adding, “We all know the Hong Kong Government cannot be trusted, especially judging from what had happened in the past.”

Some BNO status holders and their dependants who arrived before 22 July 2020 have been allowed into the United Kingdom as visitors without the ability to work or study, and others have reportedly been forced to claim asylum when it appeared that Border Force officials would not allow them into the United Kingdom.

Following a letter written on behalf of a BNO Hongkonger who entered before 22 July 2020, the United Kingdom Border Force clarified in response to that particular case that a short trip to Europe (except Ireland) may have to be carried out in order to apply for the BNO leave outside the Immigration Rules upon return to the United Kingdom.

Legally, the Border Force is right in that a policy would only be applicable from the date of publication, or from a pre-notified date of operation, in this case 22 July 2020 being the date of publication. However, in light of the ongoing Covid-19 pandemic, requiring people to travel in order to obtain the BNO leave outside the Immigration Rules has the potential to risk an increase in the spread of the virus, which has at the time of writing claimed 41,477 lives in the United Kingdom, and 822,000 worldwide. In addition, those who travel outside of the United Kingdom and return may have to be subject to a 14-day quarantine requirement.

With the BNO leave outside the Immigration Rules, BNO status holders and their dependants are given an initial period of six months to enter the United Kingdom, bringing the time neatly to January 2021. Depending on when the BNO visa scheme starts operating, those who arrived before 22 July 2020 may find their initial six months leave to remain might expire merely days short of the BNO visa scheme commencing.

It would therefore be ideal if the Home Secretary would consider an addition to the BNO policy in order to allow those who had arrived in the United Kingdom before 22 July 2020 to  apply for the BNO leave outside the Immigration Rules without the need to travel, and without having to make a full application to the Home Office with an application fee of £1,033. It would also be helpful if those who felt they were forced to claim asylum were given the option to be able to apply for the BNO leave outside the Immigration Rules and cancel their asylum claims. Even if some BNO status holders may also be worried of a risk of persecution upon return to Hong Kong, the difference in allowing a BNO holders to switch onto the BNO route, for which they are now eligible, as opposed to being within the asylum stream is that the BNO status holder will be able to work and start paying taxes immediately, whereas those claiming asylum are generally not allowed to work or study. This would give people who have fled Hong Kong the dignity they deserve – at no cost and with some benefit to Britain’s economy and society. It would be win-win – and the right thing to do.

This analysis piece was co-authored by Benedict Rogers, Hong Kong Watch’s Chair, and Perseus, an immigration and human rights lawyer