What can the Hong Kong BN(O) visa tell us about borders and belonging in Britain today?

Michaela Benson:   Welcome to “Who do we think we are?”, a podcast exploring some of the forgotten stories of British citizenship.

I am your host, Michaela Benson, a sociologist specialising in citizenship, migration and belonging, and professor in public sociology at Lancaster University.

Join me over the course of the series as I debunk the taken-for-granted understandings of citizenship and explore how thinking differently about citizenship helps us to make sense of some of the most pressing issues of our times.

John Vassiliou: As far as I can see, many of the political activists in Hong Kong who are potentially the most worried about the changes that are coming in, they are all young, many of them are not BNOs, many of them will have been born after the cut off date for BNO status and, arguably, they are the ones who maybe need this lifeline from the government the most, and they are probably being left out of this.

MB: That was John Vassiliou, an immigration and nationality lawyer at the firm Sheppard and Wedderburn, and regular contributor to the fantastic Free Movement Blog.

He was highlighting the limitations of the new Hong Kong British Nationals (Overseas) Visa Scheme.

We’ll be unpacking this more later in the episode.

George and I did not have to go too far back in the archives in researching today’s episode.

The British Government claim that this new route delivers on its longstanding commitments and obligations to the people of Hong Kong.

Its actions unfortunate, but made necessary in consequence of China’s imposition of National Security Law in Hong Kong.

Let’s have a look at how the South China Morning Post—the longstanding Hong Kong-based English language newspaper—explains this introduction of this new visa.

George Kalivis:   In their explainer, published on the 30th of January 2021, the South China Morning Post explains why the British Government introduced this visa.

They highlight the government's concerns that the imposition of the National Security Law constitutes a breach of the “One Country, Two Systems” principle at the heart of the 1984 Sino-British Joint Declaration.

It outlines the eligibility criteria and draws attention to how this is limited to those individuals who hold BN(O) status and who this then excludes.

It documents what the visa offers.

More than this, the article highlights how China has responded.

They report how the foreign minister stressed that the UK’s actions constitute foreign interference in China’s domestic affairs.

In consequence, the Chinese and Hong Kong governments will no longer recognise BN(O) passports as valid travel documents or forms of identification.

It strikes me how sometimes it’s easy to just focus on the one side of any such discussion.

MB:   For me, this article and others like it, offer an important reminder of how international relations are part of the picture in making sense of some of the seeming peculiarities that have crept into Britain’s nationality law and immigration policies.

I have a feeling that, while most of you probably know something about what has been going on in Hong Kong over the past few years, you are probably less familiar with the backstory that can explain how the Hong Kong British Nationals (Overseas) Visa Scheme is even possible.

So today we’re going to focus on that.

We’ll be hearing more from John about one of the lesser-known categories in British Nationality Law—British Nationals (Overseas)—and how this sets the stage for understanding what the new visa scheme is and isn’t.

Part of this back-story can be tracked through the major changes brought in through immigration and nationality legislation that affected not only the people of Hong Kong, but others from around the empire.

But as becomes clear, this scheme sits in the context of earlier bespoke solutions found to address the status of Hong Kongers in the run-up to 1997—the point at which sovereignty of the region was transferred from Britain to China.

What becomes clear is that Britain’s obligations to the region and its people have long been shaped by Hong Kong’s somewhat uncomfortable position between Britain and China, caught up in the turbulence of diplomatic relations between the two powers.

But first, let’s head back into the archives.

It probably won’t surprise you to know that this isn’t the first time that Britain’s actions in respect to the people of Hong Kong have been sparked in response to things that China has done.

GK:   The headlines of an article published in The Times on the 21st of June 1989 read “Government must honour obligation to Hong Kong”.

It reports from the House of Lords and calls from peers to offer sanctuary to the people of Hong Kong in light of the Tiananmen Square Massacres a few weeks earlier.

The people of Hong Kong had been closely following the student protests taking place across the border that year.

In May, when martial law had been declared in Beijing, they had taken their own protests to the streets of Hong Kong.

The city had a long history of protest—because of the absence of other routes for political expression.

But the protests of 1989 brought the city’s residents to the streets in a greater numbers than ever before.

On the 28th of May, the worldwide day of protest, 1.5 million of Hong Kongers took to the streets.

Their signs read “Today China, tomorrow Hong Kong”.

It's really interesting to see the current protests in Hong Kong in the context of this broader history.

MB:   It was less than a decade until they would find themselves under Chinese rule.

Despite the commitments to a time-limited “One Country, Two Systems” solution that had been laid out in the Sino-British Joint Declaration, it was clear that anxieties among the people of Hong Kong about whether these commitments would be honoured were at the heart of these latest protests.

The British Government was looking on.

And in the wake of the protests, they introduced the British Nationality (Hong Kong) Act of a points-based scheme to offer full citizenship—and, ultimately, entry to the UK—to up to 50,000 Hong Kong citizens (and their dependents) deemed essential to Hong Kong’s continuing economic success.

In a population estimated to be in the region of 3.5 million, this was a drop in the ocean.

You might be asking: what else could they have done?

Let’s turn to some of the wider context to find out more.

There is a long back-history to this story of Britain’s contemporary relationship to the people of Hong Kong… but we’d be here for hours if I started at the beginning, with the 1842 Treaty of Nanking—so, let's fast forward.

The status of the Hong Kongers today has its origins in the changes introduced to British immigration law over the course of the 1960s and 1970s that we heard about in our conversation with Elsa Oomen.

But, it is the British Nationality Act of 1981 and the amendments to this, introduced in consequence of the declaration drawn up between the British and Chinese governments over the future of Hong Kong, that I want to focus on here.

There’s a lot to be said about the British Nationality Act of 1981, which we’ll be exploring in other episodes, but for today’s purposes, the headlines are this:

It introduced a legal understanding of British citizenship that linked it exclusively to the UK, and this meant writing out others.

In this way, it drew a line between citizens of the UK, and those of the remaining colonies and dependent territories—it gave them a different status.

In some ways, this did little more than close the circle that had already been established through immigration law.

Simply, it remedied the contradiction that there were those sharing a status as citizens of the UK and colonies who did not have an equal right to live in the UK.

In effect, this new change, introduced with the British Nationality Act of 1981, separated out those from the UK—who were not subject to immigration control—from those whose citizenship was tied to another of Britain’s territories and would, therefore, be subject to immigration control in the UK.

And it established a new category—British Dependent Territories Citizen.

Due to the timing of the act, the people of Hong Kong were the largest population recategorised as British Dependent Territories Citizens.

But it‘s also notable that this category included those from Gibraltar and the Falklands—and we’ll be coming back to that shortly.

From “British Dependent Territories Citizens” it is just a short step to a later change which saw the people of Hong Kong granted a bespoke status as British Nationals (Overseas).

Now, this new status, that was specific to them, was introduced to satisfy China’s requirements that, once Hong Kong was handed over, its people would be unambiguously Chinese citizens—even the nominal inclusion of the term “citizen” troubled the Chinese negotiators.

And the important context here is that China doesn’t permit dual citizenship.

Really, what that status of British Nationals (Overseas) did was gave people a passport that attested to their residence in Hong Kong.

It didn’t change anything about their status for the purposes of entering to the UK—they continued to be considered as “aliens” for the purposes of immigration control—even though, as we’ll hear shortly from John, they had some “special” benefits associated with that.

So far it is to say, the British Nationals (Overseas) status was a new status for a new era of Hong Kong’s history.

It also marked the changing relationship of Britain to the people of Hong Kong—and, over time, that relationship would recede further as they made way for Chinese Hong Kong.

The family connections to Hong Kong that I’ve spoken of in previous episodes mean that this particular story has a personal resonance for me.

I should stress that, while this was not the fate of my grandmother—who had through some means become a full British citizen earlier in her life—had her life charted a different course where she didn’t meet and marry my grandfather, the story might have been quite different.

But back to the Falklands and Gibraltar.

While the Falklands and the Gibraltarians had their status as British Dependent Territories Citizens repealed and replaced with a status as British citizens, this would never be the outcome for the people of Hong Kong.

This final observation has led commentators before me to argue that this was yet another sign of racial discrimination at the heart of British nationality law and, indeed, in this broader context where different solutions were found for majority white populations it is hard to see it otherwise.

But let’s hear more from my conversation with John about this lesser-known legal status—the British Nationals (Overseas)—and how it paved the way for a new visa scheme in 2021.

JV:    BN(O) status is different to British citizenship; it’s definitely a lesser type of British citizenship. 

Unlike a normal or standard British citizen, a BN(O) citizen does not have the right to abode in the UK—that’s the biggest difference by far.

This means that despite a BN(O) being a type of British citizen, they do not have the right to enter the UK, they do not have the right to reside in the UK, they do not have the right to work in the UK.

The main perk of BN(O) status, if you can call it a perk, is that a holder can apply to the UK government for a BN(O) passport, a holder can seek consular assistance from the UK if they are in trouble abroad—unless the place they are in trouble in is China—and, I suppose, one slight advantage is they can come to the UK as a visitor for up to six months at a time without obtaining a visa in advance.

So they can just turn up at the border, Heathrow airport or wherever, and say “I am a BN(O) citizen, here is by BN(O) passport; I am coming to visit” and they will get stamped in and allowed into the country for six months.

But during that time they can only visit as a tourist; they are not allowed to work, they are not allowed to base themselves here permanently.

They are really, in that respect, treated no differently to an American citizen or a Canadian citizen or an Australian citizen.

MB:   So really what that BN(O) category is, it is slightly misleading to think about it in terms of citizenship because it doesn’t confer the rights that would otherwise be given to citizens of the United Kingdom.

It just attests to people’s citizenship in Hong Kong, I suppose, their residence in Hong Kong actually, and it gives them a travel document which is a passport; a passport itself is not a signal of citizenship, is that right?

JV:    That’s right, thank you for mentioning that, because that is a huge bugbear I have.

People often conflate passports with citizenship but a passport is just a travel document given to someone who has a certain citizenship status, a passport itself isn’t what confers that citizenship and people do tend to get confused about that. 

You are absolutely right, when we think of a typical citizen of a country they usually have certain benefits like I described—and the main one is the right to live there—and a BN(O) citizen does not.

They are not on their own, there are another four types of British citizenship status that are in a similar category to this and they’ve generally been described by courts as useless citizenship statuses in the past. (15:19)

MB:   Of course, one of the reasons that the BN(O) was explicitly not labelled as a citizen in name, so nominally citizenship doesn’t appear in the name, is precisely because China doesn’t permit dual citizenship.

So that was one of the negotiations around the naming of this strange, rather odd status.

JV:    Yes, China doesn’t permit dual citizenship so it is a very weird status.

The name of it is very unusual—I don’t know why they chose to put the word “overseas” in parenthesis there, but it is an odd category.

I’ll maybe go on to explain very briefly how someone actually acquires, or did acquire in the past, BN(O) status.

Basically, prior to the handover of Hong Kong to China in 1997, the majority of Hong Kong residents would have been classed as something called British Dependent Territories Citizens with a right of abode in Hong Kong; that was another type of British citizenship status which existed at that time and, in the ten years leading up to the handover to China, people with this type of citizenship were allowed to apply to register as BN(O)s.

Many did, mainly to retain their connection to the UK and I suppose, looking at it now, maybe that was a good decision.

But, others maybe did it just so that they could obtain a passport of sorts, because not all of them would automatically have been eligible for a Chinese passport.

There was a lot of confusion about what was going to happen during the handover and lots of people did apply for this status; over 3 million people did.

BN(O) status was an entitlement, so if someone fulfilled the conditions for it they were entitled to have it, but they had to apply to register for it, so it wasn’t dished out automatically.

If someone fulfilled the conditions for it but failed to apply to register, then they failed to get it and there was a hard deadline of the 1st July 1997 for people to register.

So what that means in practice is that it’s a closed citizenship category, no one can acquire it now, no one has been able to acquire it since 1997.

MB:   The other side of this is also the fact that you can’t pass it on to your children, it is not heritable, is it?

JV:    No, it is very much a closed category, it exists only for those that could have got it then and it won’t pass on through the generations, that’s it—you either have it or you don’t.

It’s a diminishing number of people who have it as the years go by.

MB:   Yeah… So, what does this mean in respect to what British Nationals (Overseas) would have had to do if they wanted to settle in the UK?

JV:    So, really, they are, or they have been treated exactly the same as most other foreign nationals: they don’t really derive any significant benefits or preferential treatment, they are treated much the same as any other non-British national, they have to apply for a visa if they want to live in the UK and work or study in the UK.

When they make that visa application, they can present themselves as a British National (Overseas) citizen rather than a Chinese citizen or a Hong Kong citizen or something like that, but it doesn’t actually give them any benefit or advantage over other people.

They have just been subject to the same visa regime as everyone else since 1997.

MB:   And so, subject also to the changes in that visa regime over a period of time?

JV:    Yeah.

MB:   And what about if they wanted to apply to become British citizens?

JV:    This is where BN(O)s have a slight advantage.

They are entitled to register as British citizens if they fulfil the same residence criteria that is going for naturalisation.

So if they have lived here for 5 years, and have completed the most recent year of residence in the UK free from immigration time restrictions, they can register as full British citizens.

And when they make that application, if they fulfil the criteria they have to be made British, rather than going cap in hand to the Secretary of State saying “Please, sir, will you make me a British citizen, sir”.

That is the main difference, but in order to get to that stage they have to have obtained indefinite leave to remain in the UK and that actually is the biggest hurdle in most people’s path to citizenship.

The Government is planning on introducing a bespoke visa category, which is currently billed as the Hong Kong British National (Overseas) Visa—it is a bit of a mouthful, but I will go on to explain the title in a bit more detail.

Basically, it is a five-year visa route that leads to Indefinite Leave to Remain.

So, theoretically, someone will be able to get this visa, spend five qualifying years in the UK and at the end of those five years apply for Indefinite Leave to Remain, which, as I said earlier, is the key ingredient to becoming a citizen.

People apparently will be able to apply either for a 2-and-a-half year visa that they would have to renew after 2-and-a-half years, or they can apply straight away for a full five-year visa and, whatever they choose to do, that will allow them and their family members to come to the UK and to live and work in the UK or study.

They will be able to do anything they want in the UK, really, except claim public funds, which they are not going to be permitted to do, but that is common with almost every visa category.

The name of the visa category is pretty significant, it is a mouthful but they have strung together all of those words because there are effectively two requirements to get this visa: the main applicant must be a BN(O)—British National (Overseas)—citizen and the main applicant must be ordinarily resident in Hong Kong.

This is a part that has kind of crept in through the guidance and makes sense if you see this visa as a lifeline to those in Hong Kong who are wanting to get out of Hong Kong.

So, the other thing to emphasise is that this is not a visa for anyone in Hong Kong—it’s only for BN(O) citizens.

So, there is going to be many millions of people in Hong Kong who are not eligible for this type of visa.

MB:   And that is because they don’t have the BN(O) status?

JV:    Exactly. So you may have a Hong Kong resident who really wants to leave Hong Kong because they are fearing persecution from the state or they just want a better life, or they don’t agree with the development in Hong Kong and they want to leave, but unless they are also a BNO or the family member of a BNO then they are stuck; they just remain subject to the same visa rules that exist for everyone else—they wouldn’t be eligible for this type of visa.

MB:   And beyond their legal status in Hong Kong, there are other conditions attached to this, this is not completely unconditional, it is not that anyone who is ordinarily resident in Hong Kong and has BN(O) status can come to the UK.

There are other conditions attached to it…

JV:    There are—I suppose those conditions are less onerous than those attached normally to other visa categories.

Someone who applies would have to be able to show that they can maintain themselves and any family members applying for six months; so during the first six months of their stay in the UK.

MB:   But that is more favourable than some of the other migration routes?

JV:    Yes, most migration routes have a type of maintenance requirement, where you have to show that you have got enough money to support yourself, but this one seems to be quite broad; it seems to be quite generous.

MB:   This is not necessarily going to be a route that is accessible to everyone—who do you think that this is likely to help?

Or maybe a better question is: who do you think is going to fall between the gaps on this?

JV:    It is a really good question.

I expect people will need a lot of money upfront in order to apply for this visa, and in order to do this, someone is going to have to be wealthy enough to have that upfront capital and be willing to uproot their life and move to the UK, but not so wealthy that they may just prefer to remain in Hong Kong and take their chances there.

As far as I can see, many of the political activists in Hong Kong who are potentially the most worried about the changes that are coming in, they are all young, many of them are not BN(O)s, many of them will have been born after the cut off date for BN(O) status and, arguably, they are the ones who maybe need this lifeline from the government the most and they are probably being left out of this, as far as I can see.

MB:   Yeah… Because they are probably in that very tricky position where they may have a parent who was a BN(O), but they are no longer dependents, and so they’re therefore not eligible for that route.

Within the broader context of your expertise in migration and citizenship law, what really is the significance of this?

I have heard lots of people talking about—particularly in the early days when the government was making noises around this—saying “This was exceptional”.

To what extent do you think it is exceptional within that broader landscape.

JV:    It is a tricky question; I’ll try and answer it as a lawyer as best I can.

But, from a non-lawyer’s perspective, it certainly seems like a really unusual and unexpected move from a notoriously right-wing anti-immigrant government that has just decided to end the rights of about 3 million people to freely move and come to the UK, and possibly just replace loads of European citizens that are getting cut off with Hong Kong citizens.

It seems quite bizarre timing.

But, on its face it is unusual—as a lawyer, I think it is not very common that we see something as wide and expansive as this being offered by any government, let alone a Tory government.

It looks good on paper, I think time will tell if it actually is good in practice and people actually do go for it.

I suspect that the cost is going to be really prohibitive to most applicants going for this, and if they have that level of capital anyway, they might have other options open to them.

I don’t think it is going to help those that really need it and that makes me a bit suspicious of the whole thing.

MB:   John makes really clear the limits of the new Hong Kong BN(O) visa scheme.

This is a really important context in making sense of what might, on the surface of things, look like an exceptional act for a government who’s better known for being tough on immigration.

Since we spoke last year, news of the events on the ground in Hong Kong, as the National Security Law has been enacted, has drawn further attention and condemnation from the UK and some other members of the International community.

We also know a lot more about this bespoke visa: we know its costs, and we know what the migration surcharge—that’s the fees that are paid by migrants to enable their access to the NHS—will be.

We know that this is limited to those of BN(O) status ordinarily resident in Hong Kong, the UK, Jersey, Guernsey and the Isle of Man.

In this way, it excludes applicants who may hold BN(O) status, but who have been living somewhere else in the world.

And indeed, it is relatively generous as visas go—unlike other migration routes, for example, there is no minimum income requirement.

But I think it’s good for us to also think about this in the context of a longer history, even longer than the history that John speaks of in our discussion.

I’ll drop some ideas for further reading and listening into the episode notes for those who want to know more, including links to John’s excellent legal analyses of this new visa route.

There might be something idiosyncratic about Hong Kong—after all, it never became independent like most of Britain’s colonies.

But, I think it provides an excellent example of how contemporary questions of bordering, migration and citizenship, and their precursors, do not take place in a vacuum.

They are shaped by global politics and international relations in all their messy complexity; and yet, it is easy to forget this.

The BN(O) visa route might be celebrated within the context of the Hostile Environment, but we might also want to ask questions about what this signals in a context where Britain—in consequence of Brexit—is repositioning itself on the world stage.

My final thought then, for this episode, is that we might want to think about how this gesture towards the people of Hong Kong fits the narrative of a Global Britain that has regained control of its borders.