British National Overseas Passports – the Changing Rules and Implications for Greater Mobility between Hong Kong and the UK

By Pattie Walsh, Yuichi Sekine, Jonathan Goldsworthy, Jenny Kwan

06-2020

Recently, the UK Government announced plans to change the Immigration Rules regarding holders of British National Overseas ("BNO") passports.

What is a BNO?

BNO passport holders are permanent residents of Hong Kong, who are entitled to British diplomatic and consular protections outside of Hong Kong and China.  However, they are subject to immigration control in the UK as BNO status is not equivalent to being a British Citizen due to the lack of "right of abode".  This effectively means that BNO passport holders require a suitable visa to work and study in the UK in line with other non-EU nationals.

Proposed changes to the BNO passport policy

Currently, BNO passport holders are allowed to stay in the UK for up to 6 months as a visitor.  The proposed changes include opening a new route for work or study for an extendable period of 12 months and offering BNO nationals a path to British citizenship.

Whilst there is no official regulations or guidance from the Home Office (as of the date of this publication), one of the potential avenues for implementing the changes would be to allow BNO passport holders to "switch" their immigration status from a visitor to a "worker" whilst inside the UK.  Currently, BNO passport holders must apply for a work visa from Hong Kong.

In conjunction with an "in-country" switch provision, BNO passport holders wishing to apply for a work visa will benefit from the relaxed requirements under the new Points-based System to be introduced from 1 January 2021.  For example, employers will be exempt from the resident labour market test and the annual quota on work visas when sponsoring individuals for a work visa, which makes it easier for employers to recruit skilled talent from outside the UK. 

Implications on employee transfers to the UK

The potential increased flexibility for BNO passport holders may increase the mobility of Hong Kong employees to transfer to the UK substantially.   

With that being said, until the Home Office provide details of definite changes, the current situation remains that BNO passport holders will require a visa to work in the UK. 

Employers looking to transfer Hong Kong employees to the UK will still need to obtain a sponsor licence and to go through the standard immigration procedures.  The usual employment considerations also remain at play, such as the structuring of the transfer and managing the rights and benefits that the employee may have in the two jurisdictions.

As this is a developing topic, employers are advised to remain alert and be ready to take advantage of any new changes in immigration law. 

We have an expert team of lawyers in the UK and Hong Kong capable of assisting clients on all aspects of employee mobility from business immigration, licence applications to the structuring of the transfer.