The UK’s offer of visa and settlement routes for residents of Hong Kong Contents

---

3People who are at risk of missing out

40.Witnesses who gave evidence to us on 6 January—the day when police arrested 53 people for alleged violations of the national security law in Hong Kong—warmly welcomed the “courageous and generous” establishment of the new visa route.41 Witness D told us that the proposal was “incredibly generous”, continuing

… Providing a vital lifeline to Hong Kongers is very important because a lot of people—ordinary citizens—will be in fear for their own safety. Being able to leave Hong Kong is so important, because sometimes that is people’s only option. It is not because they want to leave Hong Kong or because they want to give up what they have in Hong Kong. Rather, it is because the political situation in Hong Kong is so severe that they can no longer stay.

41.Witness D noted, however, that “of course the policy has a lot of drawbacks and a lot of areas that we wish the Government would cover, which it has not covered.”42 In this section of our report we consider some of the concerns raised with us about individuals and groups who may be at risk of missing out from the scheme.

The situation for 18–24 year olds

42.Key among these concerns was the situation of young people who were born after 1 July 1997.

43.As noted previously, BN(O) status was only available to individuals who had a personal connection with Hong Kong and who applied for status in the 10 years prior to the handover of Hong Kong to China on 1 July 1997. The status cannot be passed on directly to family members. People who were born after the handover therefore are not themselves eligible for BN(O) status and may only be considered dependants if they form part of the same household as a BN(O) status holder and apply for status at the same time as the BN(O) citizen.

44.We heard that a significant number of pro-democracy activists fall into this category since most of the protestors were born after 1997, are aged 18–24 and cannot benefit from the scheme unless their parents plan to move to the UK. Witness D told us that many of these young people are “probably… estranged from their families” owing to their political beliefs and are consequently “the most vulnerable” targets of the Beijing regime. Some of these young people have already made their way to the UK.

45.We were told that “lots of young activists who are now in the UK … don’t feel that they can apply for asylum, or maybe they feel that they don’t fit in any of the [supported] categories”.43

Young people’s routes to the UK

46.We were told that the Hong Kong census estimated there are approximately 277,000 Hong Kong citizens aged 18 to 23. Witness D said that a “significant” but unknown number of this cohort were in need of refuge. For these young people, we heard, the only viable routes to the UK were either to come as “tourists” on a visitor visa for six months and then to apply for asylum, or to come on a tier 5 youth mobility scheme visa which offers two years’ leave to remain (see paragraphs 52–58).44

47.Witnesses told us that a number of Hong Kongers had travelled to the UK in 2020 because, unlike other countries such as Taiwan, Australia and Canada which had promised Hong Kong ‘lifeboat’ schemes, it had not closed its borders during the pandemic. Some of these individuals who urgently needed to flee Hong Kong had entered the UK on visit visas, effectively using the UK as a “transit point”: they hoped that their preferred destination country would re-open its borders before their UK leave expired. Witness E noted that the immigration routes promised for Hong Kongers in other countries might be preferred because individuals were not required to claim asylum—although their circumstances might make them eligible to do so.45

Asylum

48.Some young people would potentially be eligible for asylum in the UK. It was suggested to us in January that between 100 and 300 young people had made their way to the UK who were not formally reflected in Home Office records of asylum claims.46 In February the Financial Times reported that there might be approximately 500 prospective Hong Kong asylum seekers in the UK, many of whom had not yet submitted claims. The FT noted that these individuals “are likely to face a far more complex, time-consuming and stressful journey to permanent residency than those on the BNO route”.47

49.We heard that there were particular disincentives for young people to claim asylum in the UK: delays by the Home Office in processing asylum casework might result in them getting “trapped in the system for a substantial period without any economic support”;48 they were aware that they would be unable to work, and might be unable to study, while their asylum claims were being processed49 unless they could secure permission after one year to take up work on the shortage occupation list.50 UK Government statistics show that the asylum processing backlog stood at 109,456 on 30 June 2020 (the latest date for which Government figures are available). 48,698 (44.5%) of these people had been waiting for over three years.51

50.Witness B wrote to us suggesting that the specific restrictions on work and study should be lifted to support the integration of asylum seekers from Hong Kong, and in particular to ensure that young asylum seekers did not lose opportunities for work experience and education which would support their mental health and ensure they were not left behind.52

51.We discuss further concerns about barriers to asylum claims from Hong Kong at paragraphs 91–97.

The Youth Mobility Scheme

52.Witnesses E and F each informed us that the current Youth Mobility Visa for Hong Kongers aged 18–30 did not provide a sufficient pathway for young activists.53 This is because:

• The scheme only provides for a two-year stay for work in the UK. It is not extendable and leave under the scheme may not contribute to the 5-year continuous residency requirement for settlement in the UK, although it may contribute to the 10-year continuous residency route separately provided in the Immigration Rules;54
• The cap of 1000 places on the scheme limits the numbers who could use this route; and
• It is a bilateral agreement directly with the Hong Kong Government.55

53.We were told that at the end of the period any individual on the Tier 5 youth visa scheme who is not eligible to apply for a BN(O) visa would have to return to Hong Kong, potentially facing arrest, or to seek asylum. An individual who was born before 1 July 1997 and meets the relevant criteria might apply for the BN(O) visa but would have to be successful in that application and to accrue the period of continuous residence required under that route to enable their settlement.56

Improving the offer to young people

54.Witness C argued that “exceptional treatment” should be provided by the Government for young Hong Kongers, reflecting the commitments made by the UK in the Joint Declaration, with a special scheme provided in response to the “consistent emergency” in Hong Kong.57 Witnesses made various suggestions to us as to how better support could be provided to this vulnerable group.

55.Witness B proposed that a young person who has a parent with BN(O) status should be allowed to apply without that parent, provided there is proof of the parent’s status.58 Witness F advocated reforms to the Youth Mobility Scheme including the length of the visa offered, the removal of the cap on places, and a review of the bilateral arrangement with the Hong Kong Government.59

56.Witness E argued further that a wider permission for young Hong Kongers to stay in the UK and work, without claiming asylum, would economically benefit the UK.60 Witness A suggested that the UK Government might develop a policy “to draw the talents of the Hong Kong youth to the UK” similar to the Canadian scheme, which offers a three-year work visa to Hong Kong graduates and their dependants and includes a path to citizenship.61 Witness F wrote to us to suggest that the UK Government might follow Australia’s example in providing a 5 year graduate visa for Hong Kongers studying in the country: this scheme provides for current and future students and also offers a path to citizenship.62

57.We have heard that young people are among the most targeted citizens in Hong Kong owing to their increased participation in pro-democracy protests. They are also among the most vulnerable, particularly if they are estranged from their families because of their political opinions and/or have limited financial means which restrict their freedom to seek refuge. However, many of those involved in protests were born after the handover in July 1997 and are therefore not entitled to BN(O) status. We are concerned that this gap in the scheme will leave vulnerable young Hong Kongers at risk and unable to leave. The Government should therefore extend the BN(O) scheme to enable a young person with a BN(O) parent to apply separately from that parent, provided there is evidence of that parent’s status.

58.We also agree with witnesses that the current provisions of the Youth Mobility Scheme—places on which are allotted through a lottery63—are inadequate to support the size and needs of this cohort. The Government must provide assurances about the continuing feasibility and effectiveness of the bilateral agreement with the Hong Kong government which underpins the Youth Mobility Scheme and should take steps to remove or raise the cap on places on the scheme given the current circumstances.

59.In order to provide consistency with other pathways to the UK we ask the Government as a matter of urgency to consider, and to report to Parliament, how a five-year pathway to settlement might be made available to this group.

60.Given the threats of imprisonment under the new security law faced by some Hong Kong young people, the asylum system should be another appropriate route for them to be able to follow. It is troubling that we have heard they are deterred from doing so. The current delays in the asylum system which leave young people—not just from Hong Kong—unable to study or work potentially for years before their cases are resolved are a serious problem. The Home Office must urgently address the long delays in the asylum casework system that are preventing it from operating as an effective route to safety and security for those in need of sanctuary.

Other affected groups

61.In the remainder of this chapter we consider some other groups who are potentially unable to benefit from the BN(O) scheme. Some individuals are likely to belong to more than one of these groups.

People with politically motivated criminal convictions

62.The Immigration Rules generally provide powers for the Government to refuse visas to people who do not satisfy the suitability criteria, for example because of criminal convictions, character and conduct, or who come within the scope of other grounds for refusal in the rules. The Government confirmed, through the answer to a written Parliamentary Question in October 2020, that discretion would be given in respect of applicants for the Hong Kong BN(O) visa who have convictions related to free speech or peaceful protest “which would not be considered offences under UK law”.64 Despite these assurances witnesses to our inquiry in January noted, alongside their own concerns, a more widespread perception that those with convictions associated with the pro-democracy protests would be denied entry. They commented that this might represent a barrier to people applying to come to the UK.

63.Witness B and Witness C were concerned about the approach taken by Home Office caseworkers, with Witness C describing “a huge culture of suspicion” relating to asylum applications. Witness C said that “Definitely when you fit in certain criteria you will be granted that [BN(O)] visa but if you want to seek asylum they are a little suspect about whether you are credible to claim it” and noted the need for consistency in asylum decision-making.65

64.Witness E similarly identified a concern about culture in Home Office decision-making—describing Home Office staff as “very overwhelmed” and under pressure to “get everything done”—and noted that, notwithstanding the Minister’s statement on the handling of politically-motivated convictions from Hong Kong, formal Home Office guidance on criminality did not make a distinction between convictions for recognised crimes and politically-motivated convictions. In written evidence Witness E explained further that, while a conviction under the national security law would be unlikely to be considered as a reason for refusing entry clearance

The problem with the issue of criminality is that the authorities in HK or China are not going to charge people specifically with “peaceful protest”, but for other criminal offences such as “money laundry” or “rioting”, both of which are also crimes under English law. In these cases, there may be a risk where Home Office caseworkers… may simply see this as a tick box exercise without delving into the details as to the reasons for which the applicant has accrued these convictions.66

65.As short term measures Witness E advocated the provision of specific guidance on Hong Kong, and amendment of the Government’s criminality policy, to reflect the fact that politically-motivated prosecutions may be made for “real and existing offences”: on that basis any conviction for offences should require investigation.67 In the longer term Witness E suggested that this might best be dealt with by establishing a dedicated team to work solely on Hong Kong applications, or by creating a process for individuals to submit a claim that their conviction was politically-motivated.

66.We wrote to the Minister for Future Borders and Immigration on 3 February setting out the concerns we had heard from witnesses. On the issue of criminal convictions, the Minister wrote back that “caseworkers have flexibility within the existing Immigration Rules to ensure those who have custodial sentences for crimes which are not recognised as such in the UK would not be automatically refused on the Hong Kong BN(O) route”.68

67.We welcome the statement of intent by the Home Office that discretion will be given in cases where applicants for the BN(O) visa have convictions related to free speech or peaceful protest. We are however concerned that correspondence we received from the Minister failed to provide assurances about the need to investigate the possibility of politically-motivated convictions.

68.Home Office caseworkers should be trained and regularly updated on the developing situation in Hong Kong. The Government must provide assurances that the criminality policy and associated guidance for caseworkers explicitly recognise that convictions and the designation of certain convictions in Hong Kong, including for offences which are also recognised as offences under UK law, may have been politically motivated and should be subject to investigation. We encourage the Government to establish an expert casework team to process Hong Kong BN(O) applications.

Security concerns

69.Equally, however, we were told that anti-democracy agents might apply for visas, seeking to use the BN(O) route to infiltrate, monitor and inform on the BN(O) community in the UK. Article 38 of the national security law provides that non-Hong Kong residents can be prosecuted for their acts outside of Hong Kong, meaning that members of the BN(O) community who are considered to have committed offences under the national security law while in the UK could face legal risks if they enter or return to Hong Kong.69 While witnesses called for discretion to be granted to young people with protest-related convictions, they also called for the UK Government to apply intelligence-led checks in order to identify any applicant who might pose a risk to the safety of individual Hong Kongers and/or the community in the UK.

70.We support the proposition that intelligence-led checks should be made of applications for the Hong Kong BN(O) visa to identify and screen out agents who intend to monitor and inform on the BN(O) community in the UK on behalf of the Chinese Government. This strengthens the case for having an expert casework team that understands the full complexity of issues affecting Hong Kong.

People who were minors when the BN(O) registration scheme closed

71.Witness E told us that people who were eligible for BN(O) status but were legally minors when the voluntary registration scheme closed on 30 June 1997 would have been reliant on their parents to register them: if their parents had failed to do so they would now be ineligible for the BN(O) visa scheme “despite their being born in a Crown colony under the administration of HM Government”. In a small number of cases it was possible that a family would have registered some of its eligible children during the 10-year registration period, but not others. They commented “it does not seem fair that such decisions are to be held against those who had no choice and no say in the decision of whether to maintain ties to the UK or not” and proposed that the visa scheme should be extended to those who were eligible but unregistered minors on 30 June 1997.70

72.In this context we note that the UK Government laid before Parliament on 29 April draft secondary legislation (The British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021) “to protect the nationality rights of children who might otherwise be affected adversely by the 30th June 2021 deadline for applications to the EU Settlement Scheme [and …] where reasonable grounds exist for the application deadline being missed”. The Minister wrote to us that

“… the unique nature of the EUSS cohort, and the importance attached to the citizenship rights of children, means it is right to provide a safety net for any child who might otherwise suffer through no fault of their own”.71

Both the Settlement Scheme and the Hong Kong cohorts have unique features and, while retrospective, a similar principle might be held to apply for the small numbers of individuals in Hong Kong who find themselves in this situation.

73.Young people who were eligible but too young to register themselves before handover on 1 July 1997 are being denied access to the Hong Kong BN(O) visa route because, for whatever reason, their parents failed to complete the process. The Government should assess how many young people are likely to have been affected and provide for an extension to the visa route for eligible young people to apply.

Partners of BN(O) status holder sponsors and BN(O) Household Member sponsors

74.Witness E also drew to our attention “a Hong Kong phenomenon” whereby married and unmarried couples do not live together but continue to live with their families because they cannot afford accommodation together. As the rules for the BN(O) scheme require the dependent partner of a status holder or Household Member to “form part of the same household” and to “normally live” with the sponsor such couples might be unable to demonstrate they met the scheme requirements.

75.Witness E noted that some same-sex couples might also struggle to benefit since, while same-sex relationships are not considered criminal in Hong Kong, same-sex marriage is not recognised and social stigma and familial pressures may prevent couples from living in the same household. They wrote that this situation was most acute for same-sex couples where one partner is from mainland China as Hong Kong’s immigration provisions would not permit a mainland Chinese partner to live in Hong Kong as a dependent and would thus provide a further barrier to the couple forming a single household.72

76.The Government’s impact assessment notes that the Equality Act 2010 permits direct discrimination on the basis of nationality in relation to the exercise of functions under the Immigration Acts and that the Government considers that the UK’s “historical and moral commitment to BN(O)s” justifies this policy. It notes that there is direct discrimination on the grounds of age in order to provide a route for young adult children of BN(O) status holders, born after 1 July 1997, who form part of a BN(O) household, and “limited indirect discrimination on the other protected characteristics”. It does not set out what the Government understands about those other forms of discrimination.73

77.We were concerned to hear that provisions in the Hong Kong BN(O) visa route rules may penalise couples on lower incomes and same-sex couples who because of societal pressures in Hong Kong are unable to live in the same household. The Home Office should review its equality impact assessment to ensure that this issue and others which may arise from societal expectations and circumstances in Hong Kong have been appropriately considered.