I previously wrote about the status of “British National (Overseas)”, held by approximately 2.9 million people. (What does it mean to be a British National (Overseas)?)
On 22 July 2020 the Government issued a policy statement with more information about the new immigration scheme that it will offer to BN(O)s from January 2021.
At the moment, BN(O)s can visit the UK for up to 6 months without getting a visa in advance, but they must get a visa to stay in the UK for any other reason (for example, to work, study, or live with family).
BN(O) visa requirements
The new immigration scheme will provide an immigration route based solely on BN(O) status. The main requirements to get a visa under the new route are that the applicant:
- holds BN(O) status;
- is ordinarily resident in Hong Kong;
- can accommodate and support themselves and their family in the UK for at least 6 months;
- demonstrates an intention to learn English;
- holds a TB certificate, and
- does not fall for refusal under the general grounds for refusal in the Immigration Rules.
An applicant needs BN(O) status but does not have to hold a BN(O) passport. However, the Home Office policy statement also says:
“BN(O) citizens do not need to hold a BN(O) passport in order to [apply] if they have another valid passport that allows visa-free travel to the UK”https://www.gov.uk/government/publications/hong-kong-bno-visa-policy-statement/hong-kong-british-national-overseas-visa-policy-statement-plain-text-version#further-information
Not all passports allow visa-free travel: for example, Chinese passport-holders must apply for a visa before travelling to the UK.
“Immediate family dependants” will also be eligible, even if they do not hold BN(O) status themselves. This is said to include an applicant’s spouse or partner, and their children under 18.
Older children born after the cut-off for applying for BN(O) status (1 July 1997) may also qualify in “compelling compassionate circumstances”, and discretion may be used to grant entry to other adult dependants in exceptional circumstances.
Ordinary residence in Hong Kong
The concept of ordinary residence is important in several areas of immigration and nationality law in the UK, but unhelpfully it is not defined in any Act of Parliament. A basic definition was provided in Shah, R (on the application of) v Barnet London Borough Council  UKHL 14:
“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”
This is also the definition provided by the Home Office in their guidance for assessing ordinary residence in citizenship applications.
The guidance page for the new BN(O) visa says it is available for people who “normally” live in Hong Kong.
A person can be ordinarily resident in more than one place, and the Home Office does say that BN(O)s in the UK can still use the new visa route.
However, some BN(O)s who are already in the UK might not be able to use the new route. For example, a person who has lived in the UK for a long time and has leave to remain under the “10-year route to settlement” because of their private life in the UK might want to switch into the new BN(O) route but be unable to do so.
Accommodation and support
It is not clear how financial support will be assessed: in some visa categories a variety of evidence is accepted to show that an applicant meets a “maintenance” standard, to show that they have an income at least equivalent to UK income support levels. In others, a “minimum income requirement” is applied, with strict calculations applied to different kinds of financial evidence.
Intention to learn English
The Home Office says that applicants in the BN(O) route will not have to prove their knowledge of the English language when they first apply, but that “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”. The usual standard of language required to apply for indefinite leave in other categories is B1 of the CEFR.
However, there is no mention of any requirement to pass the Life In The UK test, which applies to most other indefinite leave to remain applications.
The visa fee has not yet been published. UK visa fees vary: the fee for a UK visa to join a British family member is £1,523.00, whereas the fee for a UK Ancestry visa is £516.00.
Applicants will also have to pay the Immigration Health Surcharge. After October 2020 the IHS will be calculated at the rate of £624 per year. A 5-year visa under the new BN(O) scheme will therefore attract an IHS of £3,120 per applicant. That’s £12,480.00 for a family of 4.
Application process and visa documents
The application process is said to be similar to the process for the EU Settlement Scheme, involving an online application form and upload of documents. This is also equivalent to the current process for applying for a UK visa from Hong Kong.
BN(O)s themselves will not have to provide fingerprint biometrics, although their non-BN(O) family members will.
The visa issued will also be a digital record: this means that people in the UK on the BN(O) visa route will not have a paper document or residence permit as evidence of their status. There is evidence that employers and landlords are wary of applicants who cannot produce physical evidence of their immigration status as part of the “Hostile Environment”, even though they should be able to check status online. For example, the Joint Council for the Welfare of Immigrations (JCWI) produced a report in 2017 revealing discrimination in the private lettings market.
Settlement and British citizenship
After completing 5 years of residence in the UK on the BN(O) visa route, applicants will be able to apply for indefinite leave to remain (called “Settled Status” in the Home Office policy documents, in common with policy and rules for the EU Settlement Scheme). An application for indefinite leave to remain currently costs £2,389.00 per applicant.
After completing a further 12 months in the UK with Settled Status, BN(O)s may be eligible to register as British citizens under section 4 of the British Nationality Act 1981. This route to citizenship already exists for BN(O)s who are granted Settled Status in any immigration category. It is subject to residence and good character tests, but applicants do not have to meet the language and life in the UK requirements to which applicants for naturalisation under section 6 are subject.
In practice, as the new BN(O) visa route seems likely to require a language test for the Settled Status application, the principal benefits of the registration route are the slightly lower application fee (£1,206 compared to £1,330) and the exemption from taking the Life In The UK Test.
Interim arrangements: leave outside the rules
The Home Office also provides some guidance for applicants who intend to come to the UK before January 2021.
There are particular instructions for applying for Leave Outside The Rules (“LOTR”) on arrival in the UK, and what documents should be prepared in order to make this application.
This is an important concession, as the Home Office states that leave granted in this way will allow new arrivals to work and study in the UK, although they will not have access to free secondary NHS services.
However, anyone planning to travel to the UK using this concession should be prepared to present documents and argue their case with immigration officers on arrival. There are plenty of cases of UK arrivals being turned away by immigration officers unaware of particular policy concessions and entry guidance.
The new route will be welcome for many people who need an option to live in the UK long-term. However, there are likely to be financial barriers for many potential applicants. Even if the visa application and renewal fee is set at £516, the total cost for a family of four to come to the UK and reach Settled Status will be at least £24,100.
Applicants who are issued with Leave Outside the Rules on arrival should arrange appropriate health insurance to cover additional fees for NHS care during any period before they pay the IHS.
There might also be other application routes available for BN(O)s who cannot demonstrate they are able to support themselves financially: for example, Tier 2 General sponsored work, or a category of the new Points-Based System including Skilled Worker from 1 January 2021. Tier 5 Youth Mobility is also open to BN(O)s and Hong Kong applicants.
Contact me for immigration advice and guidance about this and other visa routes to the UK.
25 July 2020