To travel, or not to travel

I wanted to write a quick post on a question which I am coming across more and more regularly in relation to the Hong Kong BNO visa – if people are awaiting a decision on their Hong Kong BNO visa application made in Hong Kong, can they travel to the United Kingdom and wait for a decision? Before I answer the question, the usual disclaimer applies in that this is not considered as individual legal advice, and if you want advice on your particular circumstances, please seek independent legal advice.

The Home Office has already issued two editions of policy guidance on this issue on 8 July 2021 and 20 July 2021, and both editions advise to wait for a decision before travelling. I think legally it may present some difficulties too. Without a clearly defined leave outside the rules (“LOTR”) policy for the Hong Kong BNO visa scheme, any consideration of LOTR will fall to be considered under the general pre-existing LOTR policy, which says that discretion for granting LOTR should be used “sparingly”. Unlike the general LOTR policy, the Hong Kong BNO LOTR policy was a lot clearer, and more definite.

Some people have asked whether they should enter as a visitor and then apply for the Hong Kong BNO visa within the United Kingdom. If you know you want to settle in the United Kingdom under the Hong Kong BNO visa scheme, then you are not a visitor. Telling the Border Force Officer at the border that you wish to enter as a visitor could land you in trouble for obtaining leave by deception (more on this later).

If you nevertheless has travelled to the United Kingdom, and subsequent to your entry has had their application from Hong Kong approved, what then? This is where the common language of “visa” is quite misleading. When you apply for a “visa” from outside of the United Kingdom, you are applying for “entry clearance”, which is a kind of pre-clearance, if you will. Despite the grant of “entry clearance”, you can still be refused entry into the United Kingdom. This is because presenting yourself at the United Kingdom Border is applying for “leave to enter”. This can still be refused despite having been granted “entry clearance.

The technical legal terms are important here because if you have entered the United Kingdom pending a decision of the “entry clearance” application from Hong Kong, your leave in the United Kingdom is what you were granted at the border, likely six months as a visitor, or six months LOTR if you managed to come before 20 July 2021. This would not change just because the application for “entry clearance” was granted after your entry into the United Kingdom. You’ll still need to apply for “leave to enter” or “leave to remain” on the Hong Kong BNO visa scheme. Probably the easiest way to do that if you’re in this situation is just to leave the United Kingdom, and present yourself at the border with your Hong Kong BNO “entry clearance” for “leave to enter” to be granted under the Hong Kong BNO visa scheme – so that would be 2.5 or 5 years’ “leave to enter” depending on which visa option you took.

I promised to talk more about obtaining leave by deception earlier, so here we go – when you apply for “leave to enter” the United Kingdom, you may be caught out by part 9 of the Immigration Rules which deal with immigration offences. Paragraph 9.8.1 provides for the following:

9.8.1. An application for entry clearance or permission to enter must be refused if:

(a) the applicant has previously breached immigration laws; and

(b) the application is for entry clearance or permission to enter and it was made within the relevant time period in paragraph 9.8.7.

What does “previously breached immigration laws” mean? Paragraph 9.8.4 gives us our answer:

9.8.4. In paragraphs 9.8.1. and 9.8.2, a person will only be treated as having previously breached immigration laws if, when they were aged 18 or over, they:

(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply; or

(b) breached a condition attached to their permission and entry clearance or further permission was not subsequently granted in the knowledge of the breach; or

(c) were (or still are) an illegal entrant; or

(d) used deception in relation to an application (whether or not successfully).

An application in the Immigration Rules does not actually only mean an application which has been submitted. Paragraph 6 of the Immigration Rules tells us that “a person seeking entry at the UK Border is to be regarded as making an application for permission to enter”.

What does all that legal jargon mean? In summary, if you have lied to the Border Force officer when you first entered the United Kingdom pretending to be a visitor whilst awaiting the “entry clearance” decision of your application from Hong Kong under the Hong Kong BNO visa scheme, then you will still need to “activate” your “entry clearance” under the scheme and apply for the relevant “leave to enter”. Doing so may then render your application for “leave to enter” to be refused since paragraph 9.8.1 of the Immigration Rules says you must be refused “leave to enter” if you have previously used deception. The shortest period of “relevant time period” at paragraph 9.8.7 is 12 months.

Of course, this is by no means a thought exercise as to what will happen, just that there is a legal risk that this could happen. What any reader takes away from this will be entirely up to them, but it would be remiss of me to not run through any worst case basis scenarios.

Header image: VOA.

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