The British National (Overseas) (BN(O)) visa scheme opened on 31 January 2021 and offers a route to settlement in the UK. As more people now become eligible to apply for indefinite leave to remain, many applicants have questions about how the rules work in practice. Because this is still a relatively new immigration route, uncertainty often arises at the settlement stage. This article answers some of the most common concerns about applying for settlement on the BN(O) route.
Question: How is the qualifying period for settlement on the BN(O) route calculated?
The qualifying period for settlement on the BN(O) route is generally calculated from the date on which permission was granted, rather than the date of first entry to the UK.
An applicant will usually need to complete 5 years’ continuous residence in the UK on the BN(O) route. Where there is a gap between the grant date and the date of first arrival in the UK, that period is normally treated as part of the applicant’s absence from the UK and should therefore be taken into account when assessing continuous residence.
Question: Can time spent on another visa before obtaining permission on the BN(O) route count towards the qualifying period for settlement on the BN(O) route?
Under Appendix Hong Kong BN(O), paragraph HK 62.1, an applicant for settlement must usually have completed a continuous period of 5 years’ lawful residence in the UK on a route that leads to settlement.
This means that time spent on certain other immigration routes may be counted towards the 5-year qualifying period, provided that those routes are routes from which settlement is possible, such as the Skilled Worker route or a partner route. However, to qualify for settlement under the BN(O) route itself, the applicant’s most recent grant of permission must be on the Hong Kong BN(O) route at the date of application.
By contrast, time spent in the UK on routes that do not lead directly to settlement, such as the Student route or the Graduate route, will not usually count towards the 5-year qualifying period for settlement on the BN(O) route. That said, periods of lawful residence on those routes may still be relevant for an application under the 10-year long residence route, provided the applicant meets the requirements of that route.
For example, if a person spent 8 years in the UK as a Student and then lived in the UK for 2 years with permission on the Hong Kong BN(O) route, they would not normally be able to count their Student leave towards the 5-year qualifying period for settlement on the BN(O) route. However, they may potentially be eligible to apply for indefinite leave to remain under the 10-year long residence route, subject to meeting all relevant requirements.
Question: Do I need to declare parking tickets, bus lane penalties, speeding fines or other minor driving offences to the Home Office?
This depends on the nature of the penalty.
A Penalty Charge Notice (PCN) is usually issued by a local authority for matters such as parking contraventions, driving in a bus lane, or stopping in a yellow box junction. A PCN is generally a civil penalty, rather than a criminal offence. In most cases, a single PCN does not need to be declared in an immigration application, unless the application form specifically asks for it or there is a pattern of repeated non-compliance, particularly where fines have been left unpaid.
A Fixed Penalty Notice (FPN) may be issued for certain minor offences, including some motoring offences such as speeding. Whether it must be disclosed will depend on the wording of the relevant application form and the nature of the penalty. As a matter of caution, it is often sensible to disclose any Fixed Penalty Notices and provide a brief explanation in a cover letter, setting out the circumstances and confirming why the matter should not adversely affect the applicant under the relevant suitability requirements.
Question: If I hold permission as a BN(O) dependant partner and I divorce before applying for ILR, will this affect my application?
The Hong Kong BN(O) route differs from the standard partner route in an important respect. For settlement on the BN(O) route, the Rules do not require the applicant to show that they are still in an ongoing relationship with the BN(O) status holder at the date of the ILR application in the same way as under a traditional partner settlement route.
This means that a person who was granted permission as a BN(O) dependant partner may still be eligible to apply for indefinite leave to remain on the BN(O) route, even if the relationship has broken down or the parties have divorced before the ILR application, provided that all other relevant requirements are met. That said, it is generally advisable to provide a cover letter explaining the background clearly.
Question: If our family obtained permission on the BN(O) route together, and I am now eligible for ILR but my spouse is not because they came to the UK later, can our children apply for BN(O) ILR?
In many cases, not yet, unless one of the exceptions applies. Under Appendix Hong Kong BN(O), a child applying for settlement must usually meet the requirements in paragraph HK 57, which broadly requires both parents to be settled in the UK, or to be applying for settlement at the same time, unless an exception applies.
This means that if one parent is eligible for ILR now, but the other parent is not yet eligible, a minor child will not normally qualify for settlement at this stage unless:
One parent is already settled or is applying at the same time,
- That settled parent is the sole surviving parent; or
- That settled parent has sole responsibility for the child’s upbringing; or
- There are serious and compelling reasons to grant the child settlement.
The “serious and compelling reasons” exception is interpreted narrowly. According Appendix Children Caseworker Guidance, includes examples of circumstances that may be relevant to that assessment, including situations where one parent is overseas caring for a relative who requires care. However, the threshold is high, and the applicant would usually need to provide strong objective evidence together with a detailed cover letter explaining why the exception applies.
In summary, although the Hong Kong BN(O) route provides a valuable pathway to settlement in the UK, the requirements for indefinite leave to remain can still give rise to a number of practical and technical issues. As every case will depend on its own facts and immigration history, applicants should ensure that their application is prepared thoroughly, supported by clear evidence where necessary, and accompanied by appropriate professional advice where required.
