The Hong Kong British National (Overseas) Visa

By Dominic Magne

From the 31st January 2021 certain residents of Hong Kong may apply under the new British National Overseas Settled Status Visa Route.

British Dependent Territories Citizens who registered before 1st July 1997 as British Nationals Overseas , may apply to come to the United Kingdom, under the British Nationality Overseas Settled Status Holder Route.

The catchment group is defined historically as it applies to a class of people that existed at a certain date. You cannot now apply to be a British National Overseas Citizen, but if you are one, you may benefit from the visa status created specifically for this category.

Those Hong Kong residents who are so classified benefit from a broader definition of family dependents than other categories under the Immigration Rules. This is of pertinence where approximately a third of households are inter-generational.

The main requirements for entry for a the British National Overseas Status Holder to the UK are as follows:

• A visa must be granted under this route.

• The applicant must hold British National Overseas Citizenship.

• The applicant must be ordinarily resident in Hong Kong, where applying from overseas, or in the United Kingdom where applying for permission to remain.

• Applicants will need to show that they can maintain and accommodate themselves without recourse to public funds, and where applying from Hong Kong will need to have taken a recent TB test.

• Permission to enter or remain will be granted for a period of two and a half or five years, depending on application and after five years continuous and lawful residence Indefinite Leave to Remain may be granted.

Family members

Partners, including those who have been cohabiting as man and wife for a period of two years or more can apply as dependents. So can dependent children, including those over the age of eighteen, so long as they normally live with the BN(O) status holder. To reduce family separation, grand children of BN(O) status holders, may also apply as dependents.

It is likely that guidance will be published by the Home Office for the consideration of such applications. There are terms used within the Immigration Rules which already have been the defined.

Note on Terms.

Maintenance and Accommodation.

The definition of adequate maintenance is that the individual must be in receipt of the equivalent to an UK citizen’s income support entitlements under paragraph 6 of the Immigration Rules as follows:

'"Adequate" and "adequately" in relation to a maintenance and accommodation requirement shall mean that, after income tax, national insurance contributions and housing costs have been deducted, there must be available to the family the level of income that would be available to them if the family was in receipt of income support.'

These payments may include credible promises of future third party support.

Accommodation

The prospective accommodation in the UK must not contravene the definition of overcrowding as set out in the 1985 Housing Act, and is set out in accordance with a schedule as follows:

Number of rooms                                               Permitted number of persons

1                                                                                            2
2                                                                                            3
3                                                                                            5
4                                                                                          7.5
5                                                                                          10
an additional 2 persons for each room in excess of 5

The definition of “ ordinary residence” is set out in the leading case of: R v Barnet LBC ex parte Shah [1983] 1 All ER 226. As follows:-

• ordinary residence is established if there is a regular habitual mode of life in a
particular place for the time being, whether of short or long duration, the
continuity of which has persisted apart from temporary or occasional absences,
residence must be both:
o voluntary
o adopted for a settled purpose

The scope for ascertaining whether an individual is or has been ordinarily resident, ultimately lies on a case by case assessment.

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