The Home Office has recently updated its guidance to clarify that leave under the Hong Kong BN(O) route cannot be cancelled because of relationship breakdown.
Background
Like most other immigration routes, a dependent spouse/ partner under the Hong Kong BN(O) route needs to show the Home Office that they are in a ‘subsisting’ relationship with their sponsor (the BN(O) status holder) to meet the qualifying conditions for a visa. ‘Subsisting’ means the relationship is continuing and hasn’t broken down.
Dependent spouse / partners granted under the Hong Kong BN(O) route are given limited leave of 30 months or five years. So what happens if they experience relationship breakdown during that period of leave and are no longer in a ‘subsisting’ relationship with their sponsor?
Staying on the route after relationship breakdown
Under other categories of the immigration rules, we know that relationship breakdown can be fatal to maintaining status under a spouse / partner route. Relationship breakdown can lead to limited leave being cancelled because the holder no longer meets the requirements of the rules which their leave was initially granted under. It can also mean that it is no longer possible to extend leave or settle on that route.
The Hong Kong BN(O) route is different to other routes.
Under the Hong Kong BN(O) route, the requirement to be in a ‘subsisting’ relationship, and indeed all the so-called ‘relationship requirements’, only apply to the first application under the route. After that, the relationship requirement does not apply to any subsequent applications including settlement (see, for example paragraphs HK 13.1 and 13.2 and there is no relationship requirement at all for dependent spouse/ partners to apply for settlement under this route).
This means that if a person has status as a dependent spouse / partner under the Hong Kong BN(O) route, and their relationship breaks down, they can remain in the UK under the same route. Slightly confusingly, whilst their leave continues, they are still referred to as a ‘dependent’ although they are not actually ‘dependent’ on their former partner. They can apply for further permission and settlement in their own right under the same route.
Leave cannot be cancelled on relationship breakdown
What about the Home Office’s power under Part 9 of the immigration rules to cancel limited leave if the person stops meeting the requirements of the rules under which their leave was granted? This is a discretionary power which means the Home Office can, but does not have to, cancel a person’s limited leave when they stop meeting the requirements of the rules.
Immigration lawyers will know that under other immigration routes it is very common for the Home Office to cancel limited leave once it receives information about the relationship breakdown. Sponsors may write to the Home Office with the specific purpose of having their former spouse/partner’s leave cancelled. This is common in relationship breakdowns involving domestic violence.
Until recently, the lack of Home Office guidance meant that dependent spouse/ partners on the Hong Kong BN(O) route were similarly at risk of having their limited leave cancelled on relationship breakdown. This has now changed.
Earlier this year, Rights of Women wrote to the Home Office about this issue which led to an addition to the Home Office guidance called ‘cancellation and curtailment of permission’ on 11 October 2023. Page 71 of the guidance says:
Breakdown of a relationship on the British National (Overseas) (BN(O)) route
On their first application under the route, all family members applying to the BN(O) Status Holder route and the BN(O) Household Member route must be able to demonstrate that they meet a relationship requirement which links them to a BN(O) status holder or the BN(O) Household Member. However, in subsequent applications, following a successful grant of permission, it will be sufficient for the partner of a BN(O) status holder or BN(O) Household Member to show that they already hold permission on the route.
If a relationship breaks down, partners of the main applicant and partners of a BN(O) Household Member do not need to prove that their relationship is subsisting when applying for further permission on the route and can apply independently of them, including settlement applications.
You must therefore not cancel an individual’s permission if referred for cancellation due to a relationship breakdown on the BN(O) route.
Nice and clear – limited leave under the Hong Kong BN(O) route cannot be cancelled because of relationship breakdown.
Can victims of domestic violence apply for indefinite leave immediately?
In short, no.
The Home Office has not included dependent spouse / partners under the Hong Kong BN(O) route in the so-called ‘domestic violence’ route. This means that where the relationship breaks down because of domestic violence, those under the Hong Kong BN(O) route cannot qualify for immediate indefinite leave as a victim of domestic violence. Instead, they can only qualify for settlement in their own right under the Hong Kong BN(O) route after completing the rules for settlement under the Hong Kong BN(O) route, including having had leave for five years.
Access to public funds after relationship breakdown
Relationship breakdown, particularly where there has been domestic violence, may present financial difficulties such that access to welfare benefits is needed.
Limited leave under the Hong Kong BN(O) route is granted with a condition of having ‘no access to public funds’. That condition can be removed by the Home Office. Anyone under the Hong Kong BN(O) route can apply to change the conditions of their leave so that they can access welfare benefits and other public funds. This is done by a so-called ‘change of conditions’ application and guidance on the eligibility criteria is published here.
Importantly, a person who has changed the conditions of their Hong Kong BN(O) leave to enable them to access public funds, will still be able to apply for settlement after having had leave for five years.
This article was co-authored with Johanna Bezzano of Merseyside Law Centre.
