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09 June 2020

British National (Overseas): path to British citizenship?

The recent announcement by the UK Government that, if China imposes new security laws on Hong Kong, the UK will consider changing the UK immigration rules to offer British National (Overseas) (BN(O)) passport holders a potential route to British citizenship, has renewed interest in a form of British nationality that many thought was largely redundant.

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) status 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.

Rights and restrictions of BN(O) status

BN(O)s 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 presently have an automatic right to live or work in the UK.

The main benefit of this status at present is that BN(O) passport holders are able to travel to the UK as a visitor for up to six months without having to obtain a visa in advance. Furthermore, BN(O) passport holders 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) status and this nationality cannot be obtained by descent (that is, it cannot be passed onto children). Consequently the number of BN(O) passport holders will decrease over time. Currently there are around 350,000 BN(O) passport holders and an estimated 2.9 million people who are eligible to obtain a BN(O) passport.

It is worth noting that, if an individual holds BN(O) status and no other nationality, they are entitled to register as a British citizen, provided, since 19 March 2009, they have not renounced any nationality they previously held. This will give them an unrestricted right to live and work in the UK. However, it is important to note that British citizenship obtained in this way cannot be passed onto children born outside the UK.

The UK Government’s announcement

If China proceeds with implementing the new security laws in Hong Kong, the UK Government has stated that it will explore options to allow BN(O) passport holders to apply for immigration permission to stay in the UK, if eligible, for an extended period of 12 months during which the BN(O) passport holder will be able to live, work and/or study in the UK. They will also consider enabling the 12 month period to be extended annually. Over time this could entitle the holder of a BN(O) passport to apply for British citizenship. It is also likely that this immigration permission will allow the BN(O) passport holder to bring their dependant family members (partner and children under the age of 18) to the UK even if they do not hold BN(O) passports.

We would expect that, in order for a BN(O) passport holder to obtain British citizenship, they would still need to follow the standard procedure which would require the BN(O) passport holder to:

  • reside in the UK, subject to satisfying any conditions set out in the grant of the extendable 12 month immigration permission, for at least five continuous years;
  • meet the requirements to obtain Indefinite Leave to Remain (ILR) (also known as permanent residence or settlement), which, among other criteria, require individuals to not have spent more than 180 days outside the UK in any 12 months during the five year qualifying period for ILR; 
  • 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.

Although we would expect that BN(O) passport holders will be subject to the current immigration rules for ILR and nationality laws, it would be interesting to see whether the UK Government will pave a new way for expedited British citizenship for BN(O) passport holders if China proceeds with imposing new security laws.

What BN(O) passport holders can do now

Since the UK Government will only look to introduce this 12 month visa for BN(O) passport holders if China imposes these new laws, there is no action that BN(O) passport holders can take now in light of the announcement. Those who have BN(O) status but do not have a valid BN(O) passport may wish to consider applying for a BN(O) passport so that they are able to take advantage of any new provisions that may be implemented by the UK Government in the future.

Those who are living in Hong Kong without BN(O) status and wish to come to live and work in the UK should note that there are a number of other UK immigration options available, many of which lead to ILR and British citizenship. Please do contact a member of the immigration team if you would like to discuss these further.

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