Introduction

 That a British national might need to claim Refugee Status and seek asylum in their own country of nationality, the UK, is an emerging prospect for some Hong Kong British Nationals (Overseas) (BNOs). That BNOs may travel to the UK visa-free as visitors is beside the point. Nor does the fact that the UK has plans for a visa route from January 2021 for BNOs to migrate to the UK to seek residence and settlement mean that all BNOs have a safe and lawful route to migrate to the UK. There remains a cohort of Hong Kong BNOs who will require assistance. Who are they and how might they be helped?

The UK’s proposed visa route

 Although not unwelcome, the proposed visa route for Hong Kong BNOs is not comprehensive. In reality it is a liberal economic migration route that privileges middle-range and high earners who can show they will be self-sufficient for a least six months, leaving BNOs on modest incomes who wish to leave with a dilemma: stay in Hong Kong to maintain material security but in a deteriorating political situation, or seek to migrate to the UK and live in poverty and debt.

The UK’s proposed route will involve substantial fees for the visa application for time-limited leave to enter, fees for a possible a further in-country extension of limited leave, fees for an application for settlement after five years, and then yet further fees for applying for British citizenship. BNOs will also have to pay the Immigration Health Surcharge when making limited leave applications.

During their residence in the UK, BNOs granted limited leave will be subject to a ‘no recourse to public funds’ condition shutting them out from access to in-work benefits such as the housing benefit-type and working tax credit-type sums now wrapped up inside universal credit. Such in-work benefits are what enable working British citizens on modest incomes to avoid the risk of poverty and destitution; UK minimum wage levels alone being set too low to avoid that risk. To exclude BNOs with a visa from access to public funds is to shut them out from social support, whether in-work or out of work, in circumstances where nonehtless they will be liable to pay taxes and national insurance. In practice BNOs who are not self-sufficient will be migrating to poverty in the UK if they chose to come. Many will find that an invidious proposition.

In the result, the BNO visa scheme is a way of attracting higher earners, often considered to be more highly skilled. In reality, it is an unsponsored economic migration route, similar to the UK Ancestry route. In addition, it will function to assist in tempering the negative effect on the flexibility of the UK labour market of ending free movement from the EU

Other BNOs who may be excluded from the visa scheme include those who apply in-country having arrived as visitors from 2021 onwards and those applying for visas but refused on grounds of conduct under  the general grounds for refusal set out in the Immigration Rules.

In practical terms, substantial numbers of BNOs and their family members will be shut out from making use of the proposed UK visa route.

What is to be done?

What is to be done for BNOs for whom the proposed visa route is not a viable option? The best option is not to have a visa route at all and simply to legislate for a UK right of abode for all Hong Kong BNOs and their family members, see my post Hong Kong British Nationals (Overseas) (BNOs): A Route to the UK Right of Abode?

Failing, claiming Refugee Status  and seeking asylum remains an option. If a person is recognised as a Refugee Status and granted asylum by the UK, then they may not be made subject to a ‘no recourse to public funds’ restriction. Further, fees may not be charged for claiming Refugee Status and asylum.

BNOs and Refugee Status in the UK

What are the difficulties facing BNOs in securing Refugee Status and asylum in the UK?

 First, BNOs would have to leave Hong Kong and travel to the UK. However, as non-visa nationals they would be able to fly to the UK and claim Refugee status and asylum at port, seeking entry on that basis.

Second, they would have to face a well-founded fear of persecution for a Refugee Convention reason (political opinion, membership of a particular social group, etc.), were they to be returned to Hong Kong. That would need to be established. That may not be as easy as it seems and each case would need to be carefully assessed on its particular facts.

Third, BNOs would need to be outside the country of their nationality. Surely, the UK is one of their countries of nationality (the other being China). How can that circle be squared? BNOs are British nationals. Well to a point they are. It all depends on for what purpose they are British nationals.

Only for some purposes are BNOs nationals of the United Kingdom. BNO status is conferred under UK legislation and BNOs are entitled to UK passports and to seek assistance from UK consular services. BNOs may be deprived of their citizenship status. But BNOs have no right to enter the UK (a right of abode), they are subject to UK immigration law. BNO status might be a link to the UK of a legal character but it does not confer the most fundamental of nationality law rights, the right to come and go freely from the country of your nationality (what the UK terms the right of abode). Therefore, it is arguable that, for Refugee Convention purposes, the UK ought not to be considered the country of a BNO’s nationality. If that is right, a BNO on arrival in the UK is able to claim Refugee Status and seek asylum. Where a person is found to be a Refugee, generally, it is current UK practice to grant asylum. Thus a BNO Refugee would have a route to residence in the UK.

Support for the idea that British nationals who lack a UK right of abode may be able to claim Refugee Status and asylum may be found in the case of R v Chief Immigration Officer, Gatwick Airport, ex parte Harjendar Singh [1987[ Imm AR 346, QBD, where it was held that British Protected Persons, another class of British nationals who lack the UK right of abode, could make a claim in the UK that they held Refugee Status under the 1951 Refugee Convention.

Conclusion

Unless the UK revises its visa offer to Hong Kong BNOs, so as to relax fee requirements, dispense with the Immigration Health Surcharge, and lift the ‘no recourse to public funds’ condition where unaffordable, it may find that BNOs for whom the visa route in unappetising but who consider themselves to be at risk of persecution in Hong Kong  may seek to travel to the UK, assert that they are Refugees, and claim asylum.