What to expect if you are separated or divorced when making a BN(O) Visa Application?




Overview


BN(O) is a unique British nationality created for people in Hong Kong to apply before the handover to China in 1997. Albeit conferring a lifelong status, the BN(O) status cannot be passed down to family members and BN(O) passport holders were not given any special status other than to visit the U.K. for 6 months without a visa.


Changes came about in October 2020 when the British government announced a new immigration route for BN(O) citizens in what they proclaim as fulfilling their part of the Joint Declaration following the operation of National Security laws in Hong Kong.


The key features of the new announcements are:-


1. BN(O) visa will be open for applications from 31 January 2021;

2. BN(O) citizens will be able to move to the U.K. to study and work and have the right to work in almost any role;

3. All those with BN(O) status are eligible to apply as are their family dependants, provided they are usually resident in Hong Kong. There will be no quota on numbers;

4. This route will provide a clear pathway to be granted British citizenship;

5. A 5-year visa will cost £250 per person and a 30-month visa will cost £180 per person;

6. Health surcharges will apply in order to enjoy the National Health Service; and

7. The applicant will need to demonstrate they can support themselves and their dependants financially for at least 6 months in the U.K.


From BN(O) visa to British citizenship


After living in the U.K. for 5 years on a BN(O) visa, the applicant (and his/her family dependants on BN(O) visas) can apply to settle in the U.K. (known as “indefinite leave to remain”) and one year after the indefinite leave to remain, they will generally be able to apply for British citizenship. This is normally referred to as the “5+1 period”.


Concerns for separated or divorced BN(O) couples in respect of their children’s application and status


There have been increasing enquiries from separated/separating couples concerning how the parties’ divorce or intended divorce proceedings will affect their children’s BN(O) visa application or their status during the 5+1 period.


According to the requirements set out on the British government’s website (https://www.gov.uk/british-national-overseas-bno-visa/your-family-members):-


1. All children dependants (whether over or under the age of 18) must normally live with the applicant unless they are living away from home to study, and they have to apply at the same time as the applicant.

2. For children aged 18 or over, they can only apply as the applicant’s dependants if they were born on or after 1 July 1997.

3. All children under 18 will need to apply with both of their parents unless one parent has sole responsibility for them.


In general, if both parents are BN(O) citizens, either of them can make an application with their children for BN(O) visas in his/her own right as long as the applicant parent can produce evidence to show his/her relationship with the children (i.e. birth certificate) and that they normally live with the applicant.


If the applicant is a full-time mother, her application will have to be supported by the working father’s financial statements as well as their marriage certificate unless she can provide evidence showing that she has the requisite financial support as set out in the application requirements. If the parties commence their divorce proceedings after the granting of the BN(O) visas and during the 5+1 period, the full-time mother’s and the children’s BN(O) visa status will not be affected. If the parties are already divorced at the time of the BN(O) visa application, the full-time mother’s application may be supported by a court order showing her maintenance arrangement with the father.


Regarding the “sole responsibility” element which has to be satisfied for all children under 18 in the event that one of the parents does not apply for the BN(O) visa with them, the non-applicant parent will have to sign a Letter of Consent setting out his/her agreement for the children to enter the U.K. with a BN(O) visa for the purpose of settling in the U.K. under the 5+1 scheme. There is no particular format for the Letter of Consent and it should also contain the reasons why the non-applicant parent is not applying together with the applicant parent and children. If the parties are already divorced at the time of the application, the applicant parent may have to produce a custody order indicating the children’s arrangements between the parties or otherwise a Letter of Consent from the non-applicant parent.


If there is no agreement for the children to leave with the applicant parent and there is already ongoing divorce litigation, the applicant parent will need to apply for leave of the Court to permanently remove the children for relocation to U.K. In that event, the applicant parent will have to satisfy the Court that the application is in the best interest of the children and there is a genuine motivation for the migration and is not an intention to bring contact between the children and the other parent to an end. The reasonable proposals of the applicant parent carry great weight and it is also important to consider the effect on the children of the denial of contact with the other parent.


New immigration initiatives in Canada and Australia


Meanwhile, the Canadian and Australian governments have also opened up new pathways to permanent residency for Hong Kong residents in response to the implementation of National Security laws in Hong Kong. The requirements for the two countries seem more stringent compared to the new BN(O) visa system in the U.K. as they require the applicant to have certain connections such as studying or working in that country. It remains to say that the new route to permanent residency in the U.K. through BN(O) visas is less onerous and may be more desirable if one is considering moving to a foreign country.


Preliminary response


As reported recently, there has already been 27,000 applications in just over 6 weeks after the scheme was opened for application on 31 January 2021. It is envisaged that there will be a total of 300,000 applications in the first 5 years. This has a stimulating effect on the U.K. economy such as stabilizing their property market notwithstanding Brexit and the global Covid situation. A majority of the applicants are parents who consider U.K.’s education system to be more suitable for their children and it is certainly an attraction that the children are eligible for free education at U.K. State Schools. BN(O) visa is clearly gaining traction not only for those who have not previously been qualified for migration to other countries but also amongst High Net Worth families as they will not be subject to the higher threshold requirements for other forms of immigration such as investment or business visas.




Disclaimer: This article is for general information only and is not intended to constitute any legal advice. Should you have any questions on the issues discussed in this article or you require further assistance, kindly contact us on enquiry@jmoklegal.comor +852 3707 1150


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