British National (Overseas)

Before 1983, all citizens of the British Empire, including Hongkongers, held a common nationality.[11] Citizens of the United Kingdom and Colonies (CUKCs) had the unrestricted right to enter and live in the UK,[12] although non-white immigration was systemically discouraged.[13] Immigration from the colonies and other Commonwealth countries was gradually restricted by Parliament from 1962 to 1971 amid decolonisation, when British subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the UK.[14] After passage of the British Nationality Act 1981, CUKCs were reclassified into different nationality groups based on their ancestry and birthplace,[15] and the vast majority of British subjects in Hong Kong became British Dependent Territories citizens (BDTCs) with the right of abode only in Hong Kong.[16] Only those reclassified as British citizens held an automatic right to live in the United Kingdom.[17]

The British government issued a memorandum attached to the Joint Declaration that concerned transitional arrangements for the nationality of residents, which included a stipulation that a new nationality would be created for Hongkongers that did not confer right of abode in the United Kingdom.[18] The Hong Kong Act 1985 created the British National (Overseas) status to fulfil this requirement.[19] All BDTCs who did not have a connection with a remaining British Dependent Territory other than Hong Kong lost BDTC status on the day of the transfer in 1997.[20] Ethnic Chinese Hongkongers became Chinese nationals and could only retain British nationality if they had registered as BN(O)s before the handover. Residents who were not ethnically Chinese, had not registered as BN(O)s, and would have been stateless on that date automatically became British Overseas citizens.[21]

The deprivation of full passports and nationality rights for Hongkongers, and its reinforcement as part of the Joint Declaration, drew criticism for effectively making ethnicity the deciding factor in determining what rights British subjects were entitled to.[22][23][24] Hong Kong residents and Legislative Council members, with some supporters in the British Parliament,[22] believed that granting full British citizenship would have been more appropriate for instilling confidence in Hong Kong's post-handover future[25] and that residents should have been offered a choice to continue living under British rule. Proponents argued that giving Hongkongers the right of abode as an "insurance policy" to protect against a potential curbing of civil freedoms by communist authorities after the handover would encourage them to stay in the territory and help prevent a mounting brain drain.[26][27] BDTCs in Gibraltar and the Falkland Islands were already given access to citizenship, and it was noted that asking for the same to be granted to Hong Kong residents was only requesting equal treatment.[28][29] Legislative Councillors and their supporters in Parliament unfavourably compared these nationality arrangements to the situation in Macau, where residents were allowed to retain Portuguese citizenship and right of abode after that territory's transfer to China in 1999.[25][27]

A considerable number of residents began emigrating to other countries in the 1980s. While the number of annual departures remained steady for most of the decade and only started to increase towards its end,[30] the outflow grew dramatically following the 1989 Tiananmen Square protests.[31] The brutality of the Chinese government's response against demonstrations for democracy immediately dimmed local optimism in Hong Kong's future, indicated by a sudden drop in stock market and property values.[32] The crackdown caused a rush among residents to seek permanent residency or citizenship in other countries.[31] Residents feared an erosion of civil rights, the rule of law, and quality of life after the transition to Chinese rule,[33] suspicions that were only exacerbated by the Tiananmen incident.[34] Over a half million people left Hong Kong during the peak migration period from 1987 to 1996.[30] Scepticism in the Chinese government's commitment to Hong Kong's future autonomy was further reflected by high demand for BDTC naturalisation. Even though BDTC status would expire after the handover in 1997 and carried no entitlement to UK right of abode, over 54,000 people applied for it on the final registration date in 1996[35] because the status qualified them to register as BN(O)s.[36]

Despite petitions from Governors David Wilson and Chris Patten asking for full citizenship to be conferred on the colony's residents,[37][38] Parliament ultimately refused to grant all Hongkongers right of abode in the United Kingdom, citing difficulty in absorbing a large number of new citizens and that doing so would contradict the Joint Declaration.[25] Instead, it offered citizenship to only 50,000 qualified residents and their dependents, through the British Nationality Selection Scheme.[39] Because many departing residents were well-educated and held critical positions in medicine, finance, and engineering, the intention of the plan was to convince people within this professional core of Hong Kong's economy to remain in the territory after 1997.[34] This limited grant of citizenship, along with the fact that the provision for nationality without UK right of abode was included in a memorandum of the Joint Declaration and not in the treaty text, has been used by proponents of conferring citizenship on BN(O)s to argue that granting it would not be a violation of that agreement.[40] On the other hand, the Chinese government considers even these restricted grants to be a breach of the treaty[41] and specifically disregards the British citizenship of those who obtained it under the BNSS.[42] Legislative Councillors derided the Selection Scheme as a thinly veiled attempt by the British government to absorb only the wealthy and well-educated elite[43][44] and accused the UK of abandoning the moral responsibility it had for subjects in the colony.[43][45][46]

In the immediate years after the territory's handover, Chinese oversight of Hong Kong was considered relatively benign and hands-off.[54][55] Because virtually all BN(O)s are also entitled to Hong Kong Special Administrative Region (HKSAR) passports, the UK-issued passports were redundant for international travel.[55] Some residents sold these documents to people smugglers, who used them to assist illegal mainland Chinese migrants in passing through border control when they entered Western countries. BN(O) passports at the time lacked sufficient anti-forgery measures and these documents were easily altered to match the details of other people.[56] Passports issued since 2001 have been produced with digitised photos and signatures that mitigate counterfeiting issues.[57]

While nearly 545,000 BN(O) passports were issued between 1997 and 2007, the rate of renewals for these documents dropped steadily during the immediate post-handover period. From a peak of 139,000 in 2001, just over 7,600 passports were issued in 2011.[47] The usage and renewals of BN(O) passports have decreased, potentially influenced by the expansion of visa-free regions offered by HKSAR passports.[58][59] This trend of decline began to reverse in the mid-2010s amid political unrest following the 2014 Hong Kong protests;[60] about 37,000 BN(O)s renewed their passports in 2016.[48] Renewals increased sharply following the start of large-scale anti-government protests in 2019. Over 154,000 passports were issued in that year, nearly doubling the number of valid passports in circulation.[61][51] The upward shift continued through the following year; 315,000 people opted for renewals in 2020.[52]

Substantive debate on expanding BN(O) rights was restarted in 2020,[62] when the National People's Congress (NPC) bypassed the Legislative Council and directly approved national security legislation for Hong Kong that severely penalises acts of secession and subversion against the state as a response to ongoing anti-government protests.[63] This was done despite an explicit stipulation in the Hong Kong Basic Law stating the territory's responsibility for enacting its own legislation in that area.[64] Pro-democracy Legislative Councillors and activists denounced the direct application of national law without local consultation as a fundamental upheaval of the regional legal system, labelling it as the end of territory's autonomy and "one country, two systems".[65] The United Kingdom, along with its EU,[66] Five Eyes,[67][68] and G7 allies,[69] further condemned the legislation as a severe violation of the Joint Declaration that inherently undermines the system of self-government promised to Hong Kong and the fundamental rights of its residents.[70]

The Home Office initially announced that the existing six-month stay limit on BN(O)s would be extended to renewable periods of 12 months with the right to work.[71][72] When the national security law came into force, the British government declared a further extension of residence rights; BN(O)s would have leave to remain in the UK with rights to work and study, after five years they may apply for settled status. They would then be eligible for full citizenship after holding settled status for 12 months.[73] This was implemented as the eponymously named "British National (Overseas) visa", a residence permit that BN(O)s and their dependent family members have been able to apply for since 31 January 2021.[74][75] BN(O)s and their dependents who arrived in the UK before the new immigration route became available were granted "Leave Outside the Rules" at the discretion of the Border Force to remain in the country for up to six months as a temporary measure.[76] Despite the COVID-19 pandemic, about 7,000 people had entered the UK under this scheme between July 2020 and January 2021.[77] The BN(O) visa was granted to over 97,000 applicants in 2021;[78] As of 31 August 2022, there were over 133,000 BN(O) visas granted since January 2021.[79]

Countering the expanded access to UK residence, the Chinese and Hong Kong governments withdrew their recognition of BN(O) passports as valid travel documents for immigration clearance.[80][81] The territorial government further requested 14 countries that they stop accepting BN(O) passports for issuing working holiday visas, although the documents remain valid for visa purposes in all of those nations.[82] The NPC again directly legislated for the region in March 2021, approving a rework of local election laws that reduces the number of Legislative Council seats elected by the public and establishes a screening committee to scrutinise the political loyalty of candidates for public office.[83] Since this decision, the UK has considered China to be in a "state of ongoing non-compliance" with the Joint Declaration.[84]

British Nationals (Overseas) are subject to immigration controls and have neither the right of abode nor an automatic right to work in the United Kingdom.[36] They are ineligible for the Registered Traveller service, which enables expedited clearance through British immigration, despite the eligibility of Hong Kong Special Administrative Region passport holders.[116] BN(O)s are required to pay an immigration health surcharge to access National Health Service benefits when applying for a visa to remain in the UK for longer than six months[117] and do not qualify for most welfare programmes.[118]

The vast majority of British Nationals (Overseas) are ethnically Chinese and were automatically granted Chinese nationality at the transfer of sovereignty in 1997. Individuals who hold Chinese nationality concurrently with any other nationality, including BN(O) status, are treated solely as Chinese nationals under Chinese nationality law. Consequently, most BN(O)s do not have access to British consular protection while in Hong Kong, Macau, or mainland China.[42] Additionally, BN(O)s who are Chinese nationals must use a Mainland Travel Permit to enter mainland China.[119]

Until 31 January 2021, BN(O)s were able to use their UK passports for immigration clearance in Hong Kong[80] and to seek consular protection from overseas Chinese diplomatic missions.[57] Since that date, the Chinese and Hong Kong governments have prohibited the use of BN(O) passports as travel documents or proof of identity. BN(O)s who do not possess Chinese (or any other) nationality are required to use a Document of Identity for Visa Purposes for travel.[80] This restriction disproportionally affects ease of travel for permanent residents of South Asian ethnicity,[120] who were not granted Chinese nationality in 1997.[21] As an additional consequence, Hongkongers seeking early pre-retirement withdrawals from the Mandatory Provident Fund pension scheme may not use BN(O) passports for identity verification.[121]

BN(O)s are barred from registering same-sex marriages at the British Consulate-General, Hong Kong. Consular same-sex marriages under UK law are contingent on local authority approval, which the Hong Kong government has explicitly denied. Conversely, Chinese authorities have not prohibited these marriages from taking place in mainland China.[109]

Although registration for BN(O) status was dependent on permanent residency, it is possible for holders of this status to lose right of abode in Hong Kong.[122] Non-Chinese nationals who hold permanent residency or citizenship outside of Hong Kong and have not returned to the territory for more than three years at any time since the transfer of sovereignty automatically lose their right of abode.[123] However, these individuals acquire the right to land, which is identical to the right of abode except that these persons can be subject to a deportation order. BN(O)s subject to a deportation order would lose the right to land and would become effectively stateless if their permanent residency in another country were to lapse or expire.[124]

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens were European Union citizens.[125] British Nationals (Overseas) have never been EU citizens and did not enjoy freedom of movement in other EU countries. They were,[126] and continue to be, exempted from obtaining visas when visiting the Schengen Area.[125]

Similarly, while full British citizens may continue to exercise freedom of movement in Ireland (part of the Common Travel Area with the UK), BN(O)s do not have this right.[127][128]