PITFALLS TO AVOID IN NEW HONG KONG BN-(O) VISA APPLICATIONS TO UK

Accuracy and promptness are essential elements that Hong Kong’s estimated 5.4 million potential BN-(O)s must consider when making visa applications to the UK from the end of this month. 

Precise details of the UK Government’s new visa scheme were revealed at the end of January. When granted, the visa gives applicants, and their immediate families, a 5-year route to settlement in the UK with the potential of gaining British citizenship a year later.   

Accuracy in the application is particularly vital, for reasons explained below. Promptness is important because the UK Government began a review of its 20-year-old Human Rights Act in December 2020 and the report is due this summer. In the context of immigration law, successive Home Secretaries have tried to diminish the force of family life rights enshrined in Article 8 of the 1998 Act. Now, with an overwhelming 88-seat Conservative parliamentary majority, restrictive changes in this area are likely in ways previously unthinkable.

The importance of accuracy was emphasised, over my eleven years as an Immigration and Asylum Judge, in the UK government’s inflexible application of its immigration policy and Rules. Visa applicants must beware of the pitfalls created within the rigid nature of the process itself. 

Everything boils down to getting everything comprehensively correct from the start. If there is a loose end anywhere – factually or in the supporting documentation - then it is almost inevitable that the application will be either severely delayed or rejected. Getting Home Office officials to use their discretionary powers to fill gaps is nearly impossible. For them it is easier, but much more expensive for all applicants, to shift discretionary decision-making to Immigration Judges within the visa appeals process. 

Like the universal instruction to examination candidates to “read the questions carefully”, you really must do this. Do not rush into completing the form without reflecting on everything that is being asked and required.

Get anything wrong and, even when a new and corrected application is made, earlier errors coupled with the Home Office’s original “conclusions” may be used as a further reason for refusal on the basis that they undermine the applicants’ credibility. 

Mistakes will cost you not only time and money but the additional anxiety and heartache of being separated from family members who should have been within the terms of the application from the start. As highlighted above, changes in Article 8 family life provisions – particularly in family reunion cases – may render existing permissive case law redundant by the end of 2021 or early in 2022.

Immigration cases I dealt with before I retired as a Judge often had a historic Hong Kong connection. They were appeals by the soldiers and families of the Brigade of Gurkhas, many previously garrisoned in Hong Kong, seeking to settle in the UK. Their rights to come and live in the UK had been successfully advanced by a successful lobbying campaign by Joanna Lumley, herself the daughter of an officer in the Brigade of Gurkhas.

A significant number of the appeals I dealt with were Article 8 “family reunion” cases, with adult children in Nepal trying to join their former Gurkha soldier fathers and mothers in the UK. The Home Office refusals ran something like this. “You are adults with an independent life. You can look after yourselves on the money your parents send back to you. Your parents can continue their family life with you by travelling back to see you in Nepal.” 

In addition, if adult children applied for visitors’ visas to see their parents in the UK, these were refused on the grounds that there was a danger that they would “overstay”, preventing the accumulation of direct family life. Eventually, Article 8 case law began to correct the situation. 

What had not been addressed was that these families should never have been split up in the first place. Because the former Immigration Rules did not recognise Gurkha family settlement in the UK when the children were younger, these adult children were locked into a nightmare Catch 22 of an apparently logical - but thoroughly unjust - refusal loop.

It may be that Hong Kong BN-(O)s will need public figures with a similar spirit to that of Joanna Lumley to ensure that their UK entry rights are properly recognised and realised. 

Hong Kong’s BN-(O)s originally lost their full passport rights and UK nationality rights in 1983. Before then, they were classified as British Dependent Territories Citizens (BDTCs). BDTC residents of Gibraltar and the Falkland Islands did not subsequently suffer this kind of discrimination. 

Over 30 years ago, in 1989, the BN-(O)s’ position was summarised in the House of Lords by Lord Wyatt of Weeford. 

“Dramatic changes are not unknown in recent Chinese history. Everyone in Hong Kong is aware of what happened during the Cultural Revolution and they are a bit nervous about what is happening in Tibet today. After 1997 we shall be helpless to intervene. Hong Kong residents will have no means of preventing Beijing interpreting and modifying the agreement or the new basic law. It will be quite different if a significant number of those essential to the administration and commerce of Hong Kong had a passport enabling them to live elsewhere if things went wrong.”

This new BN-(O) visa scheme may, at the eleventh hour, address and correct the historic injustice that, on a much greater scale, resembles the Gurkhas’ situation. Remember, however, that accuracy and prompt action are vital.

Professor Robin Callender Smith is a former UK Immigration and Asylum Judge. He is a practising barrister at ARBITA in London and Pulau Pinang in Malaysia.