Hong Kong and British overseas nationals: the facts behind the headlines

As political issues and exchanges mount between Beijing and London, the UK government has taken the extraordinary step of creating a new visa route for residents of Hong Kong who are British National (Overseas) (BN(O)) citizens. We could write a separate and lengthy article on the background to the issues and why this is particularly relevant to the UK given our historical involvement, but we imagine – given you are reading this article – you already have some insight.

From headlines such as "Boris Johnson lays out visa offer to nearly 3m Hong Kong citizens" (The Guardian, 3 June 2020) and "UK unveils new special visa for Hong Kong's BNO holders" (BBC, 22 July 2020), it would appear the UK government has provided an extremely generous concession, which many may seem as contradictory to the ending of freedom of movement for EU nationals. Is this correct?

In summary, the answer is yes. While formal rules are due to be published, the government published its policy on 22 July 2020, which confirms a much-simplified immigration route for BN(O) nationals. It is not as straightforward as freedom of movement, but the policy confirms the requirements will be that individuals:

• have BN(O) status (but a valid BN(O) passport is not required to show this, and there is no need to request a new passport if it has expired or has been lost);
• normally live in Hong Kong;
• can accommodate and support yourself financially in the UK for at least six months;
• show a commitment to learn English, where appropriate;
• get a tuberculosis (TB) test certificate from a clinic approved by the Home Office;
• pay a fee and the immigration health surcharge

This raises some important points :

• Even those who do not have a current BN(O) passport may be able to apply. Those with expired passports can use these documents. For those who are BN(O)s but do not have evidence, the UK government will help to obtain the evidence.
• Individuals and their families will be free to live, work and study in the UK without restrictions, save for no access to public funds (benefits) but can still use the NHS, schools etc.
• No immediate requirements for English language.
• After five-years residence, individuals will qualify for settlement and for citizenship a year later.
• Although the scheme does not launch until 1 January 2021, there are special provisions in place to allow individuals to move immediately and live, work and study in the UK – and individuals will then be able to transfer to the "formal" visa in the new year.

What is possibly most surprising is the immediate implications of the above policy. While the official BN(O) visa will not be available until the new year, the Home Office has confirmed that individuals who are likely to be able to benefit from the new visa can relocate immediately. Although BN(O) passport holders can visit the UK, this does not enable permission to work or study. While this remains an option for individuals willing to relocate as a visitor until the new year, the Home Office has additionally instructed Immigration Officers to consider granting exception leave, which provides permission to work and study where an individual can show on arrival:

• Their BN(O) status, ideally with a BN(O) passport, valid or expired (but, again, if these are not available, they will be assisted in seeking confirmation).
• Normal residence in Hong Kong, such as a recent utility bill, HK ID card, etc.
• Financial support – bank statements, ongoing salary payments, savings, etc.
• For any dependants who are not BN(O) nationals, evidence of the relationship, such as marriage and birth certificates, and, if not married, evidence of cohabitation for two years.

This seems like a very useful route for anyone who has, or may be entitled to, BN(O) status to relocate to the UK immediately and easily. Although many headlines have referred to this route as offering citizenship to BN(O) nationals, it is not that simple. Nevertheless, it does appear to certainly be a simple route to citizenship in due course.

In addition to the benefit to individuals and businesses that may be considering relocation, this policy may prove a useful route should businesses wish to relocate to the UK along with their staff. Once in the UK, any relocated business, even if they have no current presence, would then be eligible to apply for a Sponsor Licence to assist in any further staff relocations, and, given the relaxation of the Tier 2 system as discussed above, this will cover more individuals. The combined effect of these two changes make the UK a very attractive destination for those businesses that wish to relocate from Hong Kong.