On 6 October 2021, changes will be made to the Hong Kong British National (Overseas) route. These cover a concession for overstaying and changes to the routes for dependent partners and children.
Hong Kong BN(O) Visa Concession for Overstaying
Paragraph 39E, which contains the provision to disregard a period of overstaying, will have the following added to it: '(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021.'
This means that any person on the BN(O) route, who had a period of overstaying between 1 July 2020 (when the policy was announced for BN(O)s shortly after the security legislation came into effect) and 31 January 2021 (when the route opened), will have this period of overstaying disregarded.
This will assist persons with pending applications to prove they meet the suitability criteria of the BN(O) route; they will not be considered in breach of immigration laws due to any overstaying in that period.
Dependent Partners of Hong Kong BN(O) Status Holders
The requirement in HK 13.3 that a dependent partner of a BN(O) Status holder must apply at the same time as the BN(O) Status Holder has been replaced. The requirement will instead be that a dependent partner must be the partner of a person who already has permission on the Hong Kong BN(O) route or is, at the same time, applying for (and is granted) entry clearance or permission on the Hong Kong BN(O) route. Therefore, there will be no requirement to apply for partners to apply together.
There will also no longer be a requirement that the dependent partner and the BN(O) Status Holder form part of the same household on the date of application. The dependent partner must instead only show that they and the BN(O) Status Holder intend to live together throughout the dependent partner's stay in the UK.
This means that dependent partners can wait for the Main Applicant BN(O) Status Holder to be granted, move to the UK, and find accommodation for the couple before applying to move to the UK as a partner. There is no time limit on when a partner must follow the BN(O) Status Holder and make an application as a dependent partner on the route. This change to the Rules will be helpful in allowing dependent partners to wrap up their family and work commitments in Hong Kong before moving to the UK.
Dependent Children of Hong Kong BN(O) Status Holders
There will also no longer be a requirement that a BN(O) Household Child apply at the same time as their BN(O) Status Holder parent, or that they form part of the same household on the date of application. Again this permits flexibility in familial arrangements, as the BN(O) Status Holder can move to the UK and the children can later follow.
The requirement has been redrafted so that only if an applicant is applying as the grandchild of a grandparent who has, or is at the same time being granted, entry clearance or permission to stay as either a BN(O) Status Holder or the partner of a BN(O) Status Holder, must the grandparent and grandchild apply at the same time, and form part of the same household.
There is still a requirement, however, that a child's parents must either be applying at the same time as the child, or have permission to be in the UK (other than as a Visitor), unless an exception applies. This applies to both the BN(O) Household Child and child of a BN(O) Household Member categories. This means that the 'astronaut' parent concept suggested by many Hong Kongers, whereby only one parent moves to the UK with the children and the other parent remains in Hong Kong, will still not ordinarily be possible unless the parent in Hong Kong has permission to be in the UK other than as a visitor.
The ordinary three exceptions are still contained in the Rules (the parent who will be in the UK with the child is the sole surviving parent, has sole responsibility for the child's upbringing, or there are serious and compelling reasons to grant the child entry clearance or permission to stay with the parent). However, to this, one further exception is added: the other parent is a British citizen or a person who has a right to enter or stay in the UK without restriction; and is or will be ordinarily resident in the UK.
This means that where the other parent is a British citizen and they are or intend to become ordinarily resident in the UK, they can also meet the requirements even though they do not have "permission" to be in the UK. This is a sensible change which has been made in most categories of the Immigration Rules. It acknowledges the fact that British citizens do not require leave to enter or remain under the Immigration Act 1971 to be in the UK.
Children who are born in the UK to BN(O) Status Holders and BN(O) Household Members can also apply to enter the BN(O) route, but they must provide a full UK birth certificate showing the names of both of their parents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.