Lynsey Blyth
Posted on 30 Nov 2020

Statement of Changes to Immigration Rules sets out how British national (overseas) citizens can obtain a visa to come to the UK from 31 January 2021

[Read time: 5 minutes]

As we close in on 31 December 2020, marking the final day of the transition period following the UK's departure from the European Union, we anticipate that an increasing number of individuals will be preparing to make UK immigration applications to secure their right to live or work within the UK.

We previously discussed the key changes under the new "Statement of Changes to the Immigration Rules" ("Statement") that will impact skilled workers and employees making applications under the intra-company transfer and the skilled worker routes here. The Statement also discussed changes affecting British national (overseas) citizens ("BN(O)s").

Following more than a year of protests in Hong Kong, at 11pm (local time) on 30 June 2020, an hour before the 23rd anniversary of the city's handover to China from British rule, Hong Kong became subject to a wide-ranging new security law imposed by China.  The new law reduces Hong Kong's autonomy and some critics argue the introduction of the law amounts to a breach of the "one country, two systems" principle.  Concerned about the impact of this new law on the residents of Hong Kong, the UK Government has introduced a new visa route for those with BN(O) status to enter the UK, granting them limited leave to remain in the UK (with the ability to live and work) and thereafter to apply for indefinite leave to remain and then citizenship.

What is a BN(O)?

There are 6 different types of British nationality, which are a rather confusing reminder of Britain's former Empire:

  1. British citizenship;
  2. British overseas territories citizen;
  3. British overseas citizen;
  4. British subject;
  5. British protected person; and
  6. BN(O).

Whether you hold one of these types of nationality depends on where you were born, when you were born and the immigration status/nationality of your parents at the time you were born.  

British overseas territories citizens by connection with Hong Kong were able to register as BN(O)s before 1 July 1997, British rule of Hong Kong having ceased on 30 June 1997.  Those that failed to register on time and those that had no other nationality or citizenship on 30 June 1997 became British Overseas citizens.

The current rights of a BN(O) citizen

Currently, a BN(O) is permitted to hold a British passport and get consular assistance and protection from UK diplomatic posts. Their status grants them eligibility to travel to the UK visa free for a visit of up to six months. However, they remain subject to immigration control and do not have the automatic right to live or work within the UK. This right is only granted to British citizens and certain Commonwealth citizens.

On expiry of a six month visit, BN(O)s are not treated any differently to any other non-EEA citizens when it comes to entry to the UK through study, economic or family routes. They can settle in the UK and be granted British citizenship if they qualify under the applicable Immigration Rules. At present, the applicable routes are:

  1. If a person lives in the UK for a period of five years, and meets the applicable residence and immigration status requirements, they can apply for registration under the British Nationality Act 1981;
  2. The British Nationality Hong Kong Act 1997 also provides for the registration of British nationals who would otherwise be stateless and are ordinarily resident in Hong Kong; and
  3. BN(O)s can also apply for registration under the British Nationality Act 1981 Act if they do not have another citizenship or nationality.

Statement of Changes to Immigration Rules

The new route for BNOs will open for applications on 31 January 2021 via the gov.uk website. There are two routes - the BN(O) Status Holder route and the BN(O) Household Member route.

  • Status Holder route – This route applies to the individual who holds BN(O) status. A citizen who is ordinarily resident in Hong Kong or the UK can apply, together with a dependant partner and a dependent child or grandchild of a BN(O).
  • Household Member route - This route applies to the adult children, born on or after 1 July 1997, of a BN(O) citizen. The BN(O) Household Member, and any dependant partner or child applying under this route must form part of the same household as the BN(O).

Eligibility

BN(O)s and their family members must all apply together at the same time. In the event that this is not done, family members will not be able to apply for their visa to join the BN(O) citizen in the UK at a later date.

Who is Eligible?

 

Status Holder Route

Household Member Route

Age

The Status Holder must be 18 or over

The main applicant must be 18 or over

Location

An applicant applying for entry clearance must be ordinarily resident in Hong Kong at the date of the application.

An applicant applying for permission to stay must be in the UK and ordinarily resident in the UK, Guernsey, Jersey, the Isle of Man or Hong Kong at the date of the application.

 

As per the Status Holder Route.

 

Required Evidence

  • a current tuberculosis test certificate from an approved clinic;
  • proof of BN(O) citizenship, for example, a BN(O) passport;
  • enrolled biometrics and digital photographs taken by a visa application centre;
  • where the applicant has not been living in the UK with permission for 12 months, evidence to show that the applicant can adequately maintain and accommodate themselves and dependants without recourse to public funds for at least six months; and
  • no serious criminal convictions and be of good character.

As per the Status Holder Route, with the additional requirement to show proof of relationship and proof of living with the BN(O).

Dependants

A dependant must fall into one of the following three categories:

  • Dependant spouse or partner who has resided with the Status Holder for two years;
  • BN(O) Household Child (or grandchild) who resides with the Status Holder; or
  • BN(O) Adult Dependant Relative.

Children and grandchildren must apply at the same time as the Status Holder and be part of the same household.

 

Those who meet the BN(O) Household Member criteria are permitted to bring their own dependant partners, spouses and children. However, only children under 18 are permitted on this route, and no grandchildren.

Fee

Each applicant must pay a fee of £250 for a five year visa (or £180 for a 30 month visa). In addition to this, there is a less modest fee of £3,120 per adult applicant for the Immigration Health Surcharge. This is reduced to £2,350 for a child under 18 years of age, and pro-rated for those applying for a 30 month visa)

As per the Status Holder Route.

Main applicants with a chipped BN(O) or Hong Kong Special Administrative Region passport will be eligible to apply using a UK Immigration ID Check app. Alternatively, those who do not hold appropriate chipped passports, can simply apply online via a specified form.

Upon a successful application, the applicant will be issued with a visa for up to five years. During the five years, BN(O) citizens and their dependants have the right to work and/or study in the UK and have access to state education and healthcare. They cannot, however, access public funds, such as income support, universal credit, housing benefit, etc.

Option to Settle

After five years in the UK with permission via a route under the Immigration Rules, applicants will be eligible to apply for settlement, subject to the standard requirements and tests. This will also be the case where the applicant has switched to a BN(O) route from another route leading to settlement, and combined the two periods of time in the UK to reach the five year requirement.

Settlement applicants must meet the usual requirements. This includes an English language test and various residency requirements, which will require that the applicant did not spend more than 180 days outside the UK in any rolling 12 month period during the five year period.

What now?

We are awaiting further guidance from the Government on the BN(O) visa prior to the application system going live. However, it is certainly worth preparing any evidence in the event that you are eligible for the scheme to ensure that you are ready to make your application on 31 January 2021.

For those who are already in the UK, or are hoping to travel before the application process opens, the Home Office is offering six-month grants of leave outside of the Immigration Rules to eligible BNOs and their dependants. They will then be permitted to switch to a BN(O) route from 31 January 2021. BN(O)s travelling from Hong Kong can obtain this at the airport upon making a request to the border officer. They will need to show evidence of their identity, BN(O) status, ordinary residence in Hong Kong or the UK and financial security in line with the above eligibility requirements. Dependants will still be required to prove their link to the BN(O) citizen and be travelling together. Applicants already in the UK must apply for the grant on form FLR(HRO).

For further information and advice, please contact Lynsey Blyth, Philip Barth or Siobhan Murphy.