Misleading Home Office advice leaves Hong Kong protester fearing deportation from UK
A Hongkonger who fled to the UK after being targeted by security officials has been left fearing deportation after appearing to be wrongly advised by the Home Office.
Olivia (not her real name) left Hong Kong in July 2022 after someone claiming to be from the new national security department – created two years earlier when the Chinese Communist party (CCP) imposed a draconian security law on the city – approached her in the street and accused her of supporting Hong Kong independence.
She says that they loitered outside her apartment as well as contacting her on social media. Her earlier participation in pro-independence protests as a student left her in fear, and she booked a flight soon afterwards.
In 2019 and 2020, Olivia had taken part in Hong Kong’s pro-democracy protests, in which millions of people took to the streets to oppose a bill that would have enabled opponents of the Chinese government to be extradited to mainland China for trial. The protests soon morphed into more general calls for democracy and freedom.
In June 2020, the Hong Kong government quelled the unrest with a national security law, imposed by Beijing, which criminalised “secession, subversion and collusion with foreign forces” – terms so vague that they have been used to silence virtually all criticism of China.
At the time she travelled to the UK, Olivia could not have applied for the flagship British national (overseas) – or BNO – visa. It was open only to those (and their dependants) who had registered before the handover of Hong Kong from British to Chinese rule in 1997. Born after that date, and travelling alone without her BNO-status parents, Olivia was ineligible.
Instead, she claimed asylum, joining a cohort of Hongkongers who in seeking safety from persecution have been stuck in temporary accommodation in the UK, reporting exploitation and abuse – and long waits to discover if they will be granted asylum.
Olivia was given hope last November when the government expanded its visa scheme to younger people, who were more likely to have been at the frontlines of the protests in 2019 and 2020.
Within days of the BNO scheme being expanded, Olivia emailed the Home Office, requesting to change her asylum application. Unlike asylum seekers, Hongkongers on a BNO visa can work in the UK; their applications are processed more quickly. “It might take years to wait for asylum,” Olivia says. “I don’t want to wait that long.”
But in February, she was shocked when she was rejected from the newly expanded scheme. The Home Office had categorised her as an “overstayer” in the UK, in breach of immigration laws, and therefore ineligible for a BNO visa.
The government’s guidelines for assessing a BNO visa application state that the applicant cannot be on “immigration bail”, the term given to asylum seekers, such as Olivia, who are not kept in detention while their claim is processed. On the advice of her Home Office case worker, Olivia withdrew her asylum claim in January in order to start her BNO application.
But withdrawing her application meant that she was no longer recorded as an asylum seeker, and was in the UK without any leave to remain. Now she is in immigration limbo, fearing deportation as she awaits the outcome of her appeal against the rejection of her claim for BNO status, a process that could take six months or more.
“I didn’t know what to do,” she says. “I read the immigration law. It says if I was applying for asylum, I am regarded as being on immigration bail, but if I withdraw [the asylum application], I am an overstayer. So whether I withdraw it or not, I can’t apply for the BNO visa. But they didn’t tell me that.”
The Home Office recommended that Olivia seek legal advice before she withdrew her asylum claim. But without access to a lawyer, she turned to Hong Kong Aid, a support group, who said that she should follow the Home Office’s instructions. Now it is clear that those instructions have caused Olivia unwittingly to breach the UK’s immigration laws.
The conflicting advice has given false hope to people like Olivia, says Ivan Yim, co-founder of Hong Kong Aid, who successfully claimed asylum himself in December. “We strongly recommend that Hongkongers seeking asylum continue their claim until the Home Office has clear instructions,” he adds.
“The UK government is historically responsible for what happened in Hong Kong, and they should provide a lifeboat for those on the frontline of Hong Kong’s freedom.”
The Home Office declined to answer questions about Olivia’s situation. It has also not refunded her £250 BNO application fee. A spokesperson says: “We are continuing to deliver on our historic and moral commitment to the people of Hong Kong and expect to welcome more Hongkongers to our country, where they can settle into their lives here.”
The vast majority of BNO applications are granted. But the number of refusals has started to creep up. The reasons for those refusals are not publicly available, but as of the end of March, 71 people, including Olivia, have been rejected this year after applying from within the UK.
Hongkongers already in the UK looking to switch to a BNO visa could include students and tourists. But there are also 166 asylum seekers from Hong Kong awaiting a decision, for whom a BNO visa would seem a more reliable path to settlement. For those people, there is no clear way to make use of the newly expanded scheme.
As for Olivia, she has no idea what she will do if the Home Office decides to reject her BNO application. “I can’t go back to Hong Kong,” she says.