Originally published by Hong Kong Watch, 25 September 2020
On 23 September 2020, the Home Office published an update to their BNO Leave Outside the Rules policy (https://www.gov.uk/guidance/british-nationals-overseas-in-hong-kong). This short note should not be seen as legal advice, but some general observations on the update published by the Home Office yesterday. You should seek independent legal advice about your own particular personal circumstances.
The update relates to what BNO status holders should do if they are already in the United Kingdom, and their leave is coming to an end. The Home Office offers four options for BNO status holders, namely:
- extend your existing immigration leave
- switch into another immigration route – you can submit an application form from within the UK where you would usually need to apply for a visa from your home country
- re-enter the UK after leaving – at the border you may be eligible to be granted ‘Leave Outside the Rules’ as a BN(O) as set out above
- apply for ‘Leave Outside the Rules’ from within the UK for up to 6 months
Option 1 above was already indicated by the Home Office as an option for those wishing to wait until January 2021 for the BNO visa scheme to become live. The Border Force has also previously suggested that option 3 may be considered by those who are already in the United Kingdom if they wish to obtain the BNO Leave Outside the Rules (“LOtR”).
Options 2 and 4 are the new pieces of information of which to take note in this latest update.
Option 2 specifically now allows BNO Hongkongers who wish to remain in the United Kingdom until January 2021 to apply for the BNO scheme to apply for other immigration routes from within the United Kingdom, even if those visa scheme would normally require you to apply from outside of the United Kingdom. For example, a Tier 5 Youth Mobility Visa would normally require you to apply from outside of the United Kingdom, but now BNO Hongkongers would be allowed to apply for this visa from within the United Kingdom.
The list of options is predicated by this paragraph:
“If your existing immigration leave expires before January 2021 and you want to stay in the UK before applying for the Hong Kong BN(O) Visa, there are a number of options open to you…”
This seems to suggest that one might be expected to apply for the BNO Visa when it becomes live in January 2021, even if you have a valid visa, for example a valid Tier 5 Youth Mobility Visa. How this might be practically enforced is another question.
The Home Office’s suggested option 4 is for BNO Hongkongers to apply for LOtR using the online FLR(HRO) form, which would require the payment of an application fee of £1,033, and attract the Immigration Health Surcharge for six months, which would amount, at the time of writing, to £200.
If one is able to consider an alternative immigration route under options 1 or 2, it may result in a cheaper option when compared to total £1,233 payable for option 4. For example, the visa fee for a Tier 5 Youth Mobility Visa is £244 and the Immigration Health Surcharge only amounts to £600 for a two-year Tier 5 Youth Mobility visa, amounting to a price difference of £389 when compared to the total of £1,233 for an FLR(HRO) application.
If an application is filed to the Home Office under options 1, 2 and 4, it remains to be seen whether a decision will actually be reached by the Home Office by January 2021. By the Home Office’s own admission, there are delays in processing of applications due to the ongoing pandemic.
“Due to coronavirus (COVID-19), it may take longer than normal for your application to be processed. If a decision has not been made on your ‘Leave Outside the Rules’ application before the Hong Kong BN(O) Visa opens for applications in January 2021, we will refund any fees or charges you have paid.”
If your current leave to remain expires whilst your application is pending, section 3C of the Immigration Act 1971 deems previous leave to be ongoing pending an application filed to the Home Office to be decided as long as the application was made in time, that is before any existing leave expires.
“If you applied with valid immigration leave, you will not be treated as an overstayer or suffer any detriment in any future immigration applications while your application is being considered.”
It is not clear at the moment whether any refund for the delayed processing of an application filed to the Home Office will be an actual refund, or just be considered as being put wards the full application for the BNO Visa after it becomes live in January 2021. The Home Office’s policy on deemed leave under section 3C of the 1971 Act provides for the following in relation to amending an application for leave to remain once filed, and pending a decision:
“While the person’s leave is extended by section 3C they cannot make a new application for variation of leave. This is because Section 3C (4) states:
“‘A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by this section.”
“However, section 3C (5) does allow the person to amend their existing application at any time before it is decided by the Secretary of State. The application to amend the existing application has to be a valid application. Where there is a difference in the fee between the initial variation application and the amended application any additional fee must be paid.”
Please note that once an application for leave to remain has been filed with the Home Office, the applicant will not be able to travel outside of the Common Travel Area, defined at paragraph 15 of the Immigration Rules as the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland, as travel outside of the Common Travel Area will result in the application for leave to remain being considered as withdrawn pursuant to paragraphs 34J and 34K of the Immigration Rules.
This update was written by Perseus, an immigration and human rights lawyer and journalist