British National (Overseas): A new UK visa route
By way of background, there are currently six different types of British nationality but only British citizenship grants the right of abode, giving an individual the right to live and work in the UK.
BN(O) citizenship was granted to British overseas territories citizens by connection with Hong Kong who voluntarily registered for this nationality prior to 1 July 1997. It was also granted automatically to British overseas territories citizens from Hong Kong who would otherwise hold no other nationality on 1 July 1997.
Current rights and restrictions of BN(O) citizenship
BN(O) citizens can hold a British passport and can access consular assistance and protection from UK diplomatic posts. However, they are subject to UK immigration control and do not have an automatic right to live or work in the UK.
The main benefit of BN(O) citizenship is that it allows travel to the UK as a visitor for up to six months without having to obtain a visa in advance. Furthermore, BN(O) citizens aged 18-30 can apply for a temporary visa under the Tier 5 (Youth Mobility Scheme) to come to the UK to live and work for two years.
It is no longer possible to apply for BN(O) citizenship and it cannot be obtained by descent (that is, it cannot be passed onto children). Consequently the number of BN(O) citizens will decrease over time. Currently there are around 2.9m BN(O) citizens.
The UK Government released a Policy Statement on 22 July 2020 which sets out a new immigration route for BN(O) citizens from Hong Kong.
BN(O) citizens and their non-BN(O) dependants (spouse/partner and children under the age of 18) will be able to apply for this new BN(O) visa. In compelling and compassionate circumstances, the Home Office may exercise its discretion and grant this visa to Non-BN(O) dependants over the age of 18 provided the applicant can show that they are still dependent on the BN(O) citizen, for example, where the dependant relies on financial support and/or lives with the BN(O) citizen. Dependent grandparents or other relatives will not be eligible if they are not BN(O) citizens in their own right but the Home Office has stated that it may exercise discretion in exceptional circumstances of high dependency which will be assessed on a case-by-case basis.
In order to qualify for a BN(O) visa, the applicant and their dependants must:
- be ordinarily resident in Hong Kong and can provide documentation in support of this (e.g. utility bills, bank statements, etc.);
- demonstrate that they can accommodate and support themselves in the UK for at least six months (i.e. provide bank statements as evidence of sufficient funds). We are still awaiting details of whether there is a prescribed minimum amount required per applicant;
- demonstrate a commitment to learn English in the UK. Applicants will not be required to pass an English language test before applying for this visa;
- provide evidence of the dependants’ link to the BN(O) citizen (e.g. marriage certificate or birth certificate);
- hold a current tuberculosis test certificate from a clinic approved by the Home Office;
- pay a fee for the visa and the Immigration Health Surcharge. The Home Office has not yet announced the application fee amount. The Immigration Health Surcharge is £400 per applicant per year, payable on the date of applying for the visa; and
- have no serious criminal convictions and be of good character.
Applicants will not be required to meet a skills test or show that they have a job offer in the UK.
Applications can be made from Hong Kong, from within the UK, or elsewhere. This means that applicants can apply in the UK whilst on a Visit Visa.
It will involve submitting an application via a digital online application (similar to the one used for EEA nationals under the EU Settlement Scheme).
It will be possible for BN(O) nationals to apply for this visa even if they do not hold a valid BN(O) passport. Applications can be submitted on the basis of either an expired BN(O) passport or, if this has been lost, a Hong Kong Special Administrative Region passport. In this latter situation, the UK Government will undertake eligibility checks using historical records held by Her Majesty’s Passport Office to confirm that the applicant is a BN(O) citizen.
This means that the majority of applications made by BN(O) nationals can be completed online without the need to send in physical documents by post or be interviewed. BN(O) nationals will not need to enrol their biometrics (that is they will not have to attend a visa application centre to have their fingerprints and a digital photograph taken) but their non-BN(O) dependants will.
Once the application has been approved, the applicant will be issued with a digital visa that will be linked to the passport they used for the application.
Conditions of the BN(O) visa
The visa will be granted for a period of 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.
It will not be possible to extend the visa beyond five years.
After five years, BN(O) citizens and their dependants should be eligible to apply for Settlement (also known as Permanent Residence or Indefinite Leave to Remain). Prior to applying for Settlement, adult applicants will be required to pass an English language test and meet the residence requirements by not having spent more than 180 days outside of the UK in any rolling 12 months during the five years of holding the BN(O) visa.
If, after five years, the BN(O) citizen and their dependants do not meet the requirements for Settlement, they will have to leave the UK or apply to remain in the UK under a different immigration category.
In order for a BN(O) citizen to obtain British citizenship, they would be subject to the standard requirements, which are that the BN(O) passport holder must:
- hold ILR for at least one year, in most cases; and
- meet the residence requirements for British citizenship, which would require them to: not be absent from the UK for more than 450 days in total in the five years prior to applying; not be absent from the UK for more than 90 days in total in the 12 months prior to applying; and not be absent from the UK for more than six consecutive months in the five years prior to applying. Under current nationality law, excess absences from the UK can be waived on a discretionary basis in limited circumstances.
When can BN(O) citizens and their dependants apply?
The BN(O) visa will be open for applications from 1 January 2021. As mentioned above, it will be possible to make applications outside of the UK or in the UK.
BN(O) citizens already in the UK can also switch to this visa from 1 January 2021.
What BN(O) citizens and their dependants can do now
In preparation for the scheme opening on 1 January 2021, applicants can start preparing the necessary documentation required for the application.
If they wish to apply in the UK, they should ensure that they hold a passport which allows visa-free travel to the UK, which may involve them having to renew their BN(O) passport.
In exceptional circumstances, a BN(O) national and their dependants can travel to the UK now and apply at the UK border for Leave Outside the Rules for a period of six months, provided they hold a passport which permits visa-free travel to the UK and they hold full private health insurance. To submit this application, they will have to provide to the Immigration Officer they meet on arrival the same evidence as if they were making a full application for a BN(O) visa. Once they have been granted entry into the UK, they will be able to apply for a BN(O) visa from within the UK once the scheme is launched on 1 January 2021.
The UK Government will announce further details of this visa in the new immigration rules which will be published in the Autumn.
Those who are living in Hong Kong without BN(O) status and wish to come and live and work in the UK should note that there are a number of other UK immigration options available which lead to Settlement and British citizenship, such as the Tier 1 (Investor) category. Please contact us if you would like to discuss the other available options further.