In response to China’s planned changes to security laws in Hong Kong, the UK Government is reported to be considering changes to immigration laws, to provide a “route to citizenship” for people with British National (Overseas) status (see, for example, the Guardian: Boris Johnson lays out visa offer to nearly 3m Hong Kong citizens). So what does it mean to be a British National (Overseas)?
Who is a British National (Overseas)?
Hong Kong was under British control for 99 years from 1898 until 1997. Before 1 July 1997, residents of Hong Kong were British Dependent Territories Citizens, a status created by the British Nationality Act 1981.
From 1 July 1987, in anticipation of Hong Kong’s return to Chinese control, eligible Hong Kong residents could register for the new status of British National (Overseas) (“BN(O)”). The registration period ended on 31 December 1997, and it is no longer possible to register for BN(O) status. The status of BN(O) cannot be passed on to children.
Most BN(O)s are also Chinese nationals.
The Home Office has stated that approximately 2.9 million people living in Hong Kong have BN(O) status, and about 349,881 people hold BN(O) passports (Source: Media factsheet: Hong Kong BN(O)s 29 May 2020).
What rights does a BN(O) have?
A BN(O) is entitled to hold a BN(O) passport, and to some consular assistance outside the UK and China.
In contrast with other Chinese nationals, a BN(O) does not need to apply for a visa in advance in order to visit the UK for up to 6 months, and does not have to register with the police in the UK.
However, BN(O)s still need to apply for a visa in order to come to the UK for longer periods (for example, to work, study, or join family members).
Plans for change
The Government’s plans appear to include changes to the Immigration Rules to allow BN(O)s to “come to the UK for a renewable period of 12 months and be given further immigration rights including the right to work which would place them on the route to citizenship”.
The Home Office media blog says that “the UK government will explore options to allow BN(O)s to apply for leave to stay in the UK, if eligible, for an extendable period of 12 months.”
At the moment, BN(O)s can visit the UK for up to 6 months without getting a visa in advance. However, people who are given permission to come to the UK for periods of 6 months or less are not usually allowed to “switch” into longer-term immigration routes within the UK.
One interpretation of the Government’s announcement is that BN(O)s could be permitted to enter the UK for an initial 12-month period, which would give access under the current Immigration Rules to some other immigration routes such as those for family members. However, most routes under the Points-Based System for work and study in the UK also require applicants in the UK to have existing status in those categories. The Immigration Rules would have to be amended further to allow switching from any new category of leave.
Another interpretation is that a special category of leave to enter and remain could be created for BN(O)s, permitting work and study, and renewable every 12 months. This would be closer to Boris Johnson’s claim that the Government’s plan would represent “one of the biggest changes to our visa system in history”.
There is no information about what other requirements would be made of applicants such as financial or English language requirements. There is also no indication how people would become eligible for indefinite leave to remain in this new category.
A “route to citizenship”
There is already a “route to citizenship” for BN(O)s in the UK.
Under section 4(2) of the British Nationality Act 1981, a BN(O) has a right to register as a British citizen provided that:
- They have been free from immigration control for 12 months before they apply (this normally means having indefinite leave to remain or a right of permanent residence)
- They have been resident in the UK for the 5 year period before they apply, without too many absences
- They are of good character
There are no requirements to demonstrate a knowledge of life in the UK, or the English language.
In contrast to naturalisation, which is discretionary, a BN(O) has a right to register as long as they meet the requirements. The application is made using form B(OTA) and the Home Office provides guidance about eligibility and how to apply.
However, the requirement to have indefinite leave to remain in the UK is common to both naturalisation and registration. At the moment, a BN(O) who comes to the UK with a work or family visa will usually become eligible for indefinite leave to remain after 5 years in that category.
It is also worth noting that in most categories, an applicant for indefinite leave to remain must pass the Life In The UK Test and meet the English language requirement. Exceptions to this would include people who have acquired permanent residence rights under EU free movement laws; applicants under the EU Settlement Scheme, and certain people with leave to remain under human rights and protection categories.
Unless the Government’s plans for BN(O)s include a new immigration category that leads to indefinite leave to remain in less than 5 years, and amendments to citizenship laws to allow for registration after a shorter residence period, it is arguable that no new “path to citizenship” is required.
3 June 2020