The Guidance (at page 30) states that dependent partners and dependent children of the lead applicant on the BN(O) Status Holder route need not apply at the same time as the lead applicant. It does state, however, that “a BN(O) Household Member, and their family members, a grandchild of a BN(O) status holder, or a BN(O) Adult Dependent Relative must apply for permission at the same time as the lead applicant”. This latter provision has meant that adult children of BN(O) passport holders have been unable to apply independently of their parents.

The situation of adult children of a BN(O) passport holder has been addressed by the recent Statement in the House of Commons (linked above). The Statement announces that adult children will in future be able to apply independently of their parent. The Statement says that amendments to the Rules will be published in September with the changes expected to go live from October.

Once a BN(O) visa has been granted, there is no requirement for the whole family to travel together. The Rules state that “Applicants must travel to the UK within 90 days if they went to a visa application centre to prove their identity, or before their permission (either 30 months or 5 years) expires if they used the ‘UK Immigration: ID Check’ smartphone app to prove their identity. “

The longer you wait before you travel, the sooner after arrival in the UK you will have to apply for an extension. Your visa is active from when it is granted, not from your arrival in the UK.

We have been asked about a scenario which relates to a family where both parents hold a BNO passport. They have two or more children and they would like to move to the UK in stages – first one parent with a child, and then later on the second parent and remaining children will follow.

In this case, the family can choose whether to apply separately or together. Each parent can apply for a BN(O) visa naming the child or children who will be accompanying them as dependents. In this case, each parent can apply for their visa, and move to the UK, when they choose. If the family applies for visas together, they may also choose to travel to the UK separately. These options may result in some family members becoming eligible for settlement before the others.

2. Applying for settlement

The general rule is that a person can apply for settlement once they have completed five years of continuous residence on a route to settlement, of which the most recent grant of permission must have been on the Hong Kong BN(O) route. The definition of “Continuous Residence” is complicated and has its own Guidance document – linked above.

We have been asked about whether time spent in the UK as a student on a Tier 4 visa would count towards the five year period for settlement – this is not the case, because Tier 4 is not a route to settlement. Likewise, time spent as a visitor would not count.

Another scenario we have been asked about relates to families who want to stagger their moving times – in this situation the parents and two minor children have applied for and been granted BN(O) visas but one parent is not able to move to the UK at this time, or has to move later than the rest of the family. The question is whether the other family members have to wait until the second parent has completed 5 continuous years of residency before they can apply for indefinite leave to remain. Assume for the sake of argument that one child is ten years old and another is 15 years old.

This is dealt with by the guidance at pages 45-47. In relation to the younger child, they will still be a child when they have been living in the UK for 5 years.

The guidance in this situation says:

“This section tells you about the relationship and care requirements for a dependent child on the Hong Kong BN(O) route including on the BN(O) Status Holder route and the BN(O) Household Member route. These must be met where the applicant is under the age of 18 on the date of application."

The applicant must have last been granted permission as a dependent child on the Hong Kong BN(O) route (the BN(O) Status Holder route or the BN(O) Household Member route).

At least one parent of the applicant must be being granted settlement on the Hong Kong BN(O) route at the same time as their child or grandchild, or be settled, or a British citizen. Their other parent must be being granted settlement at the same time, be a British citizen, or be settled, unless one of the following exceptions apply:

one parent is deceased
one parent has sole responsibility for the child’s upbringing
there are serious and compelling reasons to grant the child settlement

In practice, this means that the younger child would have to wait until both parents are in a position to apply for settlement before she or he can apply for settlement (unless the other parent is already a British citizen or is settled or the other reasons stated above apply).

This is also covered at page 30 of the guidance:

“Additionally, for a grant of settlement on the Hong Kong BN(O) route, a BN(O) Household Child must be being granted at the same time as their BN(O) status holder parent, and/or their other parent who is already settled or a British citizen. A BN(O) Adult Dependent Relative must also be applying for settlement at the same time as the BN(O) status holder or the partner of a BN(O) status holder, or who is already settled or a British citizen. If the BN(O) status holder and their dependent BN(O) household child or BN(O) Adult Dependent Relative travelled to the UK separately, the continuous residence requirement for settlement may mean that these dependants may have to apply for further permission to stay beyond 5 years if the BN(O) status holder has not yet fulfilled the continuous residence requirement.”

In relation to the older child, they will have turned 18 by the time they have been in the UK for 5 years, and the guidance states the following:

“A child who has turned 18 since they successfully applied for entry clearance or permission to stay should apply as a BN(O) Household Member at settlement. As with other adult children, they will not need to demonstrate that they continue to meet a relationship requirement.”

3. Extensions

We have received a number of questions related to extensions and the details of how and when to apply for an extension. The Rules and the Guidance are currently silent on extensions, except that it is implicit from the Guidance that extensions are envisaged. Our advice in relation to this is given on the assumption that the usual provisions of the Immigration Rules relating to extending limited leave to remain will apply in relation to an application for further leave to remain on the BN(O) route.

With this in mind, if a person has applied for and been granted 30 months leave to remain, what are the factors to consider in relation when to apply for an extension?

First, the most important thing is to apply to extend your leave to remain before the expiry of your current visa. If you allow the visa to expire before you apply to renew, you may lose your right to live and work in the UK and jeopardise any future applications you might wish to make.

However, it is also important not to apply to renew too soon. If your application is granted, the new visa will start from the date of the decision, not the date of expiry of your first visa. The rules say that when you apply to extend a visa before the expiry of your current visa, a period of up to 28 days can be added to the new visa. The effect of this is that if you apply before the 28 day period, you will lose the benefit of the first 30 month period (because you can only get a maximum of 28 extra days added to the new visa). This could mean that at the end of expiry of your second visa, you have still not reached the 5 year period for settlement and you have to apply for another extension.

If you make a valid application to extend your visa before the expiry date of the first visa, your immigration status remains unchanged until that application is decided – this is because of s3C of the Immigration Act 1971. This would mean that your rights (for example, your right to work, and your right to rent) continue even though your visa may have expired.

On a related issue, we have been asked about applying for an extension if, at the end of a five year period, a person has not completed 5 years continuous residence for the purposes of applying for settlement.

As discussed above, Appendix BN(O) does not address extensions, but there appears to be an assumption that extensions will be permitted. The definition of “Continuous Residence” is complicated and has its own Guidance document – linked above. It would be advisable to understand at the outset how this might affect you so that you might be able to take steps to ensure that you do not have a problem with it.

4. Students

We have also received a number of queries about students.

For example, if a young person has a BN(O) visa as part of a family application, can they move to the UK to start a University course before the rest of the family? Will they need a student visa? Would they be eligible for home fees?

A person with a BN(O) visa is entitled to study in the UK, subject to ATAS conditions. They don’t need a student visa and they can travel independently of the rest of the family (see under 1 above). A person with limited leave to remain (including under a BN(O) visa) is not entitled to pay home fees or to access student finance. Once a person has been granted settlement, they would be entitled to pay home fees and to access student finance. It is possible that a bursary might be available in cases of hardship – the student would need to ask their university about this.

We have also been asked about people who already have a student visa (and have paid the immigration healthcare surcharge) but are now being included in an application for a BN(O) visa. Do they need to pay the IHS again?

The answer to this is that they will need to pay the IHS required for the BN(O) visa application. They can then apply for a refund of the unused portion of the IHS associated with their student visa. The link above includes information about how to do this. It is possible to get a refund, but it may take some time.

5. Public Funds

We have also been asked about Public Funds. It is a condition of the BN(O) route that a person will not be eligible to apply for Public Funds. We have linked the detailed Guidance document relating to Public Funds above. It includes most social security benefits (but not contributory benefits). It does not include compulsory school age education, and it also does not include schemes such as shared ownership, although these might have other eligibility criteria (for example, they might require a local connection).

Please note that, although a BN(O) visa will have a restriction against applying for Public Funds, it may be possible to apply for a change in conditions at a later date if your financial circumstances change significantly so that you are at risk of destitution.

6. Subsequent partners

If a person who is resident in the UK on a BN(O) visa gets married or enters into a civil partnership, can their partner get a visa to join them in the UK?

Spouses and civil partners have the same legal status for the purposes of HK BN(O) rules. A spouse or civil partner who was not included in the BN(O) Status Holder’s application will be granted permission which ends on the same date as the permission of the BN(O) Status Holder.

If you are not married or in a civil partnership, your partner might still be able to apply for a visa but you would have to show that you have a durable relationship. The requirements are that all the following requirements must be met:

a) you must have been living together in a relationship similar to marriage or civil partnership for at least the two years before the date of application; and

b) any previous relationship of the applicant or the BN(O) Status Holder with another person must have permanently broken down; and

c) you must not be so closely related that you would not be allowed to marry in the UK.

7. Dependent parents

It is possible for an Adult Dependent Relative to be included in an application for a BN(O) visa if the following conditions are met (Rule 49.2):

a) as a result of age, illness or disability require long-term personal care to perform everyday tasks; and

b) form part of the same household as the BN(O) Status Holder who has, or is at the same time being granted, permission; and

c) be unable, even with the practical and financial help of the BN(O) Status Holder or the partner of the BN(O) Status Holder, to obtain the required level of help in Hong Kong, if the BN(O) Status Holder or the partner of the BN(O) Status Holder move to the UK, either because the help:

i. is not available, and there is no person in Hong Kong who can reasonably provide it; or

ii. is not affordable.

For a successful application, it will be important to provide as much evidence as possible.

8. The path to settlement and citizenship

Once you arrive in the UK, here are some things to bear in mind to help in the transition to settlement and (if desired) citizenship:

Consider the Life in the UK test and the English language test: The Life in the UK test does not expire. Check the applicable English language requirements nearer the time.
Continuous residence: Check the guidance to make sure you meet the continuous residence test for your next application. Keep evidence of residence: copies of passports entry/exit stamps, utility bills, council tax bills, HMRC and tax documents, health related documents etc.
You can continue to work and exercise other rights in this period. Continue to meet suitability criteria.
Continue to meet the financial requirements and do not apply for public funds unless specifically allowed to. If you need public funds, seek advice on how to access it.
If you have a child in the UK please make a BNO visa application in line with yours. If the child does not have a passport please rely on a full birth certificate.
If you are in a post arrival relationship and your partner is [not from the UK] please consider including them in a future application and retain evidence of your relationship.
Monitor changes in immigration rules
After 5 years of continuous residence (refer to the guidance document) you can apply for settlement.
After one further year, you may be able to apply for citizenship, so long as you meet all the criteria.

For further questions on the BNO visa, please email

kentlegal@hkbrits.com

For part 2:

https://www.hkbrits.com/post/part-2-faqs-bno-visa

Welcome HK-Brits

FAQs: BNO visa 常見問題

Prepared by immigration advisors from Citizen Advice West and North Kent

由 Citizen Advice West 和 North Kent 的移民顧問編寫

Source materials

Frequently Asked Questions (FAQ)

1. Applying and travelling together or independently