Elsa Oommen
British National (Overseas) status was created in July 1987, ten years before the sovereignty of Hong Kong was transferred to China. Previously, Hong Kong residents automatically acquired the status of British Dependent Territories Citizens (BDTC) through the British Nationality Act, 1981. However, this category was to become redundant when Hong Kong fully transferred to China in 1997 – to become Hong Kong Special Administrative Region (HKSAR). BN(O) status was not automatically conferred on Hong Kong residents, instead they had to apply within a ten-year window of July 1987 till July 1997, or in limited cases till 31 December 1997.
Approximately, 2.9 million people currently hold BN(O) status. This status cannot be applied for retrospectively, and cannot be passed down to children. Further, BN(O) status does not grant the holders any deemed rights to live/settle in the UK indefinitely, instead they have the opportunity for visa-free travel for 6 months in a year, and rights to consular assistance. This means that they need to secure a visa (like any other non-EU citizen) to take up work or study or join a British/EU spouse in the UK.
In more recent geo-political developments with Hong Kong, the UK has issued a Hong Kong BN(O) visa policy statement introducing a 5 year visa to BN(O) citizens and their immediate dependents, including non-BN(O) citizens. This extraordinary step from the UK comes against the backdrop of escalations between China and Hong Kong, over the Chinese imposition of a national security legislation on Hong Kong, in violation of the 1984 Sino-British legislation.
The strict timelines and eligibility criteria in the erstwhile acquisition of BN(O) status, has meant that several young people, like children born shortly after 1997, who are now over 18 years will not qualify as minor child dependents, of BN(O) citizens. The inadequacies of the settlement route and the possible difficulties around the newly proposed 5-year visa are clear and in the legal-scholarly public domain.
In this piece, I will, instead, be focusing on another immigration route that is floated in the latest policy statement: the youth Mobility Scheme (YMS) I will argue that the broad-brush solution of YMS may not be feasible because of how it is set up within the UK’s Points-Based System.
Why the Youth Mobility Scheme?
To start with, YMS is contingent on bilateral agreements and reciprocal arrangements between the participating regions – meaning that countries monitor the scheme against ‘immigration risk’, provide reciprocal opportunities for their citizens and comply with ‘satisfactory returns arrangements’(Appendix 2: p.12). Currently, this quota-based scheme is open to 8 participating regions: Australia, New Zealand, Canada, Hong Kong, Taiwan, Republic of Korea, Japan and Monaco. It is also open to British Overseas Citizens (BOC), British Nationals Overseas (BN(O)) and British Overseas Territories Citizens (BOTC) – without any quota or sponsor requirements. However, the latest available statistics on the entry clearance visas granted in 2018 show that it is hardly taken up by those holding BOC (just two YMS visas granted in 2018) and BOTC passports (no YMS visas granted in 2018).
By the Home Office’s own latest guidance document, The Tier 5 (Youth Mobility Scheme) ‘allows young people, aged between 18 and 30, to travel to the UK for mainly non-economic reasons, and offers young migrants from participating countries and territories, opportunities to work temporarily while experiencing life in the UK.’(Sec. 33.2, p.150).
More worryingly, ‘sponsors under the Tier 5 (Youth Mobility Scheme) are the national governments of participating countries and territories, not individual employers or other organisations.’ (Sec. 33.3, p.150). This statement alone is enough to highlight that YMS is not a scheme that the UK can unilaterally offer to citizens of other countries. The scheme has also escaped critical scrutiny since its introduction in November 2008, and is out of step with other elements of the UK’s managed migration regime – making it the only route to stipulate ‘national governments’ as sponsors of potential migrants.
The Hong Kong Special Administrative Region has been a participating region in YMS since 1 January 2014 (with bilateral arrangements agreed between the countries in 2013). Several HKBN(O)s have also been taking up this scheme – since there is no quota limitation on BN(O)s, unlike the annual quota of 1000 places available for HKSAR passport holders. It is also worth emphasizing at this point that those holding only HKSAR passports (with no rights to BN(O)) are also likely to be those who are too young to qualify for BN(O) status.
Accessibility of YMS for non-BN(O) Hong Kongese
I will now revisit the mention of YMS in the newly proposed Hong Kong BN(O) settlement route visa. It says that every Hong Kong BN(O) passport holder will be eligible for a 5 year visa, which is also eligible for settlement. They are hoping that those who are not eligible for this – should, instead apply for YMS. However, YMS is dependent on the Hong Kong Special Administrative Region – which at this point is controlled by Chinese government – acting as the sponsor of YMS migrants, and being formally responsible for their subsequent return to Hong Kong.
It is also worthwhile to assess the number of migrants who move to the UK on this visa. In 2018 (the year up to which we have actual data), a total of 21,313 youth mobility visas were granted – out of this, only 1,124 were issued to those from Hong Kong (5.3% of total YMS visas issued in 2018) – the data does not separate out BN(O) and HKSAR passport holders, and so it is very difficult to know how many HKSAR passport holders ever made use of this YMS opportunity. This is also because, up until July 2019, those who wished to apply for a YMS visa had to first get Certificates of Sponsorship (CoS) from the Hong Kong Labour department – and then use this documentation and other mandatory documents, to make an application for a YMS visa. From July 2019, the requirement of obtaining CoS from the Hong Kong Labour Department has been removed, and the UK visas and Immigration has been running a lottery system, to allocate the annual quota of 1000 places to HKSAR passport holders – nevertheless, the scheme is still based on bilateral-reciprocal agreements in place since 2013. YMS is also not a settlement route – meaning that the time spent on the visa will not be counted (just like a Tier 4 student visa) towards the general period of 5 years that is needed to qualify for settlement.
Conclusions
The fine print of YMS is that countries bilaterally agree to run this scheme – meaning that both countries have obligations in monitoring the scheme and its participants – and so, it is one thing for a policy document to casually mention YMS (for purposes of inclusivity), and quite another for the scheme to work that way. With the way things are progressing between the UK and Hong Kong, especially after the UK’s suspension of the extradition treaty with Hong Kong, the continuation of this scheme with HKSAR passport holders is highly speculative at this point.
All this is testament to the fact that reassuring non-BN(O) passport holders in Hong Kong about moving to the UK on a YMS visa as a solution, may not work in practice. We need to consider that these are young people who are presumably opposed to the government of China and Hong Kong, and the recent imposition of laws on Hong Kong. What are the likely chances that Hong Kong will act as the sponsor of these young nationals in this unfolding strained relationship between the UK and HK? The very bilateral agreement on which this scheme exists between Hong Kong and the United Kingdom may get changed or removed altogether. This evolving situation requires regular monitoring and policy updates to help include adult children and elderly family members of HKBN(O)s who do not hold BN(O) passports on their own.
Elsa Oommen is Honorary Research Fellow and Principal Investigator on a Sociological Review funded project titled ‘Long-term Caribbean migrants and their experience of rights and restrictions in the UK’. She is visiting fellow at Goldsmiths (University of London) and has extensive research experience in both applied and academic research on youth mobility, EU-India mobility arrangements and international labour markets. She completed a PhD in Sociology (2018) at the University of Warwick. She also holds degrees from University of Hyderabad (MA in Sociology) and University of Madras (BA in Economics). She thanks Dr Michaela Benson for detailed comments and suggestions on an earlier version of this article.