Britain’s Relationship with Hong Kong
Hong Kong was acquired by the British in stages between 1842 and 1898 to be used as a trading centre between Britain and other European traders, and China.
Whilst Hong Kong Island was acquired at the conclusion of the Anglo-Sino First Opium War in 1942, the Kowloon peninsula was added following the Second Opium War in 1860 and in 1898 the British leased the New Territories for a period of 99 years from the Chinese. The combination of these territories is Hong Kong as we know it today.
Despite having been occupied by the Japanese during WWII, Hong Kong continued to form part of the British empire after the war ended in 1945. When the British Nationality Act 1948 was enacted, Hong Kong continued to be part of the UK and Colonies and in 1983, when the British Nationality Act 1981 came into force, it became a British Dependent Territory.
In line with the 99-year lease granted by the Chinese in 1898, the New Territories within Hong Kong were due to be returned to the Chinese in 1997. Despite this applying only to the New Territories, Britain agreed at this time to relinquish sovereignty over all of Hong Kong.
Negotiations for the return of Hong Kong concluded in 1984.
Hong Kong and China had developed very differently in terms of their economic, legal and political systems and it was for this reason that it was agreed that for 50 years after its return, Hong Kong would be a Special Administrative Region, maintaining its own political and legal systems, independent from China.
British Nationals (Overseas)
Prior to 1 July 1997, Hong Kong was a British Dependant Territory and about 3 million people living in Hong Kong had been British Dependent Territories Citizens (“BDTCs”) under the British Nationality Act 1981.
On 1 July 1997, regardless of whether they obtained any other nationality, Hong Kong’s BDTCs ceased to be BDTCs as part of the negotiated agreement. The vast majority of these individuals were also Chinese nationals but there were also a small number who were stateless or held other nationalities.
One concession made for Hong Kong’s BDTCs during negotiations was that, despite losing their BDTC status and their right to access British consular services within Hong Kong, they could continue to travel using a British travel document if they applied for it between 1987-1997. Whoever applied would be given a travel document which denoted that they were a British National (Overseas) or BN(O).
This was a therefore a status which could not be acquired automatically and had to be applied for within a specific time-frame.
Virtually all of those who had been eligible to apply, approximately 3.5 million people, did so.
Although at the time, BN(O) status conferred very little, as it did not provide any right of abode in the UK itself, over the years a number of provisions were introduced to give BN(O)s holding no other nationality, and those who would otherwise be stateless, routes to full British Citizenship.
By and large none of these provisions would, however, have assisted any of those former Hong Kong BDTCs who were also recognised by the Chinese authorities as being Chinese nationals.
New Visa for BN(O)s
In May 2020, the Chinese government announced its decision to introduce national security legislation that would apply in Hong Kong. The UK government reported that, if implemented, this would “curtail the Hong Kong people’s liberties” and “dramatically erode their autonomy” and that it therefore represented a clear breach of the agreement reached in 1984 that, as a Special Administrative Region, Hong Kong was to maintain its own independent legal and political systems for 50 years, until 2047.
In response, the UK government has therefore offered a new immigration route to all BN(O)s who normally live in Hong Kong and to those born after 1997 to a BN(O) registered parent to be able to come to the UK.
From January 2021, BN(O)s will be able to apply from inside or outside the UK for a "Hong Kong BN(O) Visa" for a period of either 30 months (extendable by a further 30 months thereafter) or for a single period of 5 years. The conditions to satisfy for either length of visa appear to be identical but the 5-year visa will mean a greater upfront cost, taking into account a likely higher application fee and the Immigration Health Surcharge (soon to increase to £624 per year per adult applicant). Although the 5-year route is likely to be more cost effective overall, the availability of the 30-month renewable visa appears to be providing an opportunity for applicants to spread the cost, which is likely to be significant.
Although they will be subject to a “no recourse to public funds” requirement, these visa holders will be permitted to work and to study in the UK. After holding this visa for 5 years, they will be eligible for Indefinite Leave to Remain (“ILR”) and after a further 12 months the BN(O) will be eligible to apply to register as a British citizen subject to the usual requirements under section 4 of the British Nationality Act 1981. This is a more straightforward and slightly cheaper route at least than naturalisation and does not include any element of discretion if the requirements are met. The family members of a BN(O) will continue to have to naturalise if they want to become British citizens.
Unlike earlier measures, this visa will be open to all registered BN(O)s, whether or not they also hold Chinese or some other nationality.
BN(O)s can already enter the UK as a visitor for up to 6 months without a visa but will be subject to the usual restrictions on visitors (i.e. being unable to work or study) during that time. The difficulty with that is that they would not be genuine visitors if they are planning to remain in the UK long-term.
BN(O)s wishing to come to the UK prior to January 2021 with their non-BN(O) family members are now apparently able to do so and are being informed that on arrival they “may” be granted Leave Outside of the Rules on arrival for a period of 6 months, so long as they are travelling together with their family (which can include spouse, civil partner, unmarried partner, children and other family members where there is a high degree of dependency) and can show that they can financially support and accommodate themselves in the UK for a period of 6 months.
There is a long list of evidence that will need to be produced on arrival by BN(O)s and their family members if they are arriving prior to January 2021 and are hoping to be granted Leave Outside of the Rules on arrival. Whilst a person travelling under a BN(O) passport might be able to be enter as a visitor, this appears to be somewhat riskier for their family members who may be refused entry if the particular member of Border Force encountered is not satisfied with the evidence produced.
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