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On Tuesday 30 June 2020, China implemented their highly controversial security law within Hong Kong. Details of the new law have remained secretive since it was voted in earlier this year. As the law has now come into force, its effects are becoming clear. The new law targets “secession, subversion and terrorism”, Those breaching these broadly defined terms face maximum sentences of life in prison.

The new law has been deemed by the UK government to be a “clear and serious breach” of the 1985 Sino-British joint declaration.  The declaration is a legally binding agreement that sets out how the rights and freedoms of Hong Kong citizens would be protected over the 50 year period following the regions return to China in 1997. As a result of the deemed breach, the UK government shall be introducing a new route for British National (Overseas) – BN(O) – passport holders to obtain limited leave to remain in the UK, with a future path to British citizenship. This route offers BN(O) passport holders and their families a route out of Hong Kong and the option to migrate to the UK.

There are around 350,000 BN(O) passport holders, with another estimated 2.6 million others eligible to apply. Currently, British National (Overseas) Citizens, despite the title suggesting to the contrary, are only entitled to enter the UK for six months without applying for a visa and are restricted in what activities they can undertake whilst in the UK. Under the government’s plans, BN(O) passport holders and their dependents will apparently be given the right to remain in the UK for five years, including the right to work but the details of the new policy are yet to have been announced. Questions arise as to what conditions might be placed on BN(O) nationals. Will they be subject to Immigration application fees, the immigration health surcharge and so on? Will they be required to have a certain level of savings for their maintenance prior to their arrival?

The path to citizenship has not been fully explained but will likely require BN(O) passport holders to reside in the UK for up to 6 years and meet specific criteria to qualify. The grant of indefinite leave and eventual citizenship will certainly not be automatic simply by residing in the UK. Anyone considering this route will need to ensure compliance with the immigration rules for the qualifying period to secure citizenship at the end of their limited leave to remain. For example, excessive absences over the 5 year period can result in application refusals and for BN(O) passport holders who regularly travel for business/work or otherwise, their travel will need to be carefully monitored over the qualifying period.

Another potential obstacle to citizenship includes how the UK Home Office will view criminal convictions obtained through participation in the Hong Kong protests. Currently, applicants must meet a ‘good character’ requirement to qualify for citizenship. This broadly defined requirement catches those who have received criminal convictions and without reasonable excuse and suitable representations on the matter, applications could be refused if one has any convictions. BN(O) passport holders who have been convicted in recent years may need advice as to how these convictions can be addressed to avoid refusal. These are just some of the factors that those considering applications will need to be aware of over their limited leave in the UK.

Edwin Coe’s Immigration team led by Dhruti Thakrar are seeking high level clarification on the above matters on an urgent basis.

Should you be a British National (Overseas) passport holder and wish to know how you may apply for a UK visa, or if you are a resident of Hong Kong and wish to know if you qualify for a BN(O) passport, please get in touch with Dhruti Thakrar by email at dhruti.thakrar@edwincoe.com or telephone on 07804 268096 or George Curie via email at  george.curie@edwincoe.com or by phone on 07955 854984.

 

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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