BN(O) Passport: An Ongoing Debate

BN(O) Passport: An Ongoing Debate

BN(O) Passport: An Ongoing Debate 1200 800 Adam Hugill
Reading Time: 5 minutes

The British National (Overseas) Passport (“BN(O)”) and the rights it confers to Hong Kong SAR residents with Chinese nationality is not a new topic. It is an issue that has been debated since the handover and has been fuelled by various factors. The recent National Security Bill has resurfaced this debate.

With the recent unrest witnessed in Hong Kong and the potential worldwide ramifications, the importance of the BN(O) Passport has come into play. You may be keen to know if you are eligible and what benefits you will be entitled to if you obtain one.

BN(O) Passport

In the 80’s when the handovers of Hong Kong and Macau were being planned, there was controversy over who would be eligible for what nationality. The former Portuguese territory of Macau granted most of its residents’ full Portuguese nationality, either by birth right (“jus soli“) or by blood relations (“jus sanguinis“) before its handover to Mainland China in 1999.

BN(O) Passports were formulated in 1985 through the Hong Kong Act 1985. They are issued by the UK. The issuing of BN(O) Passports was agreed by Britain and China in an annex to the Sino-British Joint Declaration of 1984. If you are eligible, you have a lifetime right to this Passport.

The BN(O) Passport has often been a contentious political topic. In July 2018, local media outlets reported on a letter dated October 1995 that seemed to show that the British Government attempted to exert pressure on Portugal not to grant full citizenship to Macau residents – in an attempt to dissuade Hong Kong people from demanding the same rights for BN(O) holders. It was alleged that the concern was that an overwhelming amount of Hong Kong people would move to the UK, if granted full nationality.

Who is eligible?

You are eligible for a BN(O) Passport if you are a Chinese citizen of Hong Kong who was born before Hong Kong’s handover in 1997. Currently there is an estimated 2.9 million people who are eligible to apply for BN(O) Passports and around 300,000 Hong Kong people currently hold one.

Upon expiry, your BN(O) Passport will need to be renewed for the benefits to be enjoyed. If you have previously had a BN(O) Passport but have not renewed it you can still renew it now, as the right to a BN(O) Passport is granted for life. Similarly, if you were born in Hong Kong before 1997 and had no other nationality on 30 June 1997, but never registered as BN(O) you still have the right to apply for such Passport today.

You do not need to worry about relinquishing your current Hong Kong SAR Passport if you wish to apply, as eligible applicants can hold both Passports.

The availability of these Passports does not extend to your family members/ dependants. Although, in the past couple of weeks there has been some noise surrounding changes to the current BN(O) Passport status. Perhaps this is a shift that will be considered?

How to apply

If you are eligible, you can simply visit the UK Governments website and complete the Overseas British Passport Application online. If accepted, your BN(O) Passport will be issued within 12 weeks. Given the current pandemic, issuing of BN(O) Passports could now take longer than this.

What benefits are provided?

Currently if you hold a BN(O) Passport, you can enter the UK visa-free for up to 6 months and can enter many other countries visa-free. As a BN(O) Passport holder who is resident in the UK, you will also be entitled to the right to vote.

However, it does not give you the automatic right to abode. Not having the right to abode in the UK will mean that you will have no right to work and no access to public funds. In turn, this means no access to free healthcare, state benefits and more.

There are certain methods whereby the BN(O) Passport can help grant easier visas or citizenship. If you are a BN(O) passport holder aged 18-30, you can apply for a temporary visa under the Tier 5 (Youth Mobility Scheme) to go to the UK to live and work there for two years.

Furthermore, if you have BN(O) status and you do not hold any other nationality, you can register as a British citizen. Although, you cannot have renounced any previously held nationality since 19 March 2009. This citizenship will not be able to be passed onto your children if they are born outside the UK.

A “pathway to future citizenship”?

British Foreign Secretary Dominic Raab has recently revealed that changes to BN(O) Passports may be introduced to provide a “pathway to future citizenship”. There remain questions and it is still not crystal clear what a “pathway to future citizenship” would look like.

What we do know is that the UK Government has suggested that the current 6 months of visa-free access will be increased to 12 months. Further to this, Boris Johnston has hinted at increasing the immigration rights “including the right to work”. The intention seems to be to provide BN(O) Passport holders the opportunity to come to the UK and find a job/study.

On 2 June, Rabb said that the proposed changes to the existing BN(O) Passport benefits will only apply to current BN(O) Passport holders and their dependants. This implies extended rights to dependants – eg. spouses and/or minor children – but means that if you do not currently hold a BN(O) Passport you may not benefit from the proposed changes.

Rabb has stated that conversations with countries such as the United States of America (“US”), Australia, New Zealand and Canada are underway in an effort to “share the burden”. Indications that these countries could also introduce similar paths to citizenship have come from the US. US Secretary of State Mike Pompeo has said “the people of Hong Kong can come to the warm embrace of this country”. However, it also worth noting that Rabb commented on the event of “mass exodus” and “burden sharing” as unlikely.

Raab has so far dismissed calls from some Members of Parliament to provide UK visas to those not eligible for BN(O) Passports. There has been a proposed Bill called the Hong Kong Bill 2019-21. The Bill aims to place requirements on the UK Government relating to the Sino-British Joint declaration, to make provisions about immigration for Hong Kong residents including granting rights to live in the UK. The Bill has had its first reading in Parliament and is due to have its second reading in September.

The current route to British citizenship?

As a BN(O) Passport holder you can obtain citizenship through residing in the UK, subject to satisfying any conditions set out in the grant of the extendable 12-month immigration permission, for at least five continuous years. You will then have to meet the requirements for Indefinite Leave to Remain (ILR), which is similar to the permanent residence status in Hong Kong.

To obtain IRL you will have to have not spent more than 180 days outside the UK in any 12 months during the five-year qualifying period for ILR. Once granted the ILR you will have need to have held it for at least one year.

Finally, you will likely have to meet the residence requirements for British citizenship, which demand not to have been absent from the UK for more than 450 days in the five years prior to your application, not to have been absent from the UK for more than 90 days in the 12 months prior to your application and not to have been absent from the UK for more than six consecutive months in the five years prior to your application.

Conclusion

There is still a lot of speculation around what changes (if any), regarding BN(O) Passports and UK immigration rights to Hong Kongers, will be implemented. For now, if you want to obtain BN(O) Passport you should first check if you are eligible. If eligible, it will be important to consider how you are going to use your visa-free access to the UK. If your goal is citizenship, then be sure to lay out a plan for yourself to achieve this. Currently, citizenship and right to abode is not an automatic right that you will receive. We will wait and see what announcements are made.

 

Our team at Hugill & Ip has extensive experience in dealing with Immigration issues – so kindly get in touch with us to find out how we can help.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Adam Hugill

Adam Hugill

Adam advises on a wide range of contentious and non-contentious legal and commercial issues, with a special emphasis on employment law in Hong Kong and the Asia Pacific region.

All articles by : Adam Hugill
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