Can Hong Kong Nationals Claim Asylum in the UK?

From January 2021, the UK intends to launch the BN(O) visa, as discussed in our previous article. Whilst it is suggested that the proposed immigration route for BN(O) citizens is 'very generous' – it is clear that the BN(O) visa is not an 'unconditional offer' (July 2020).

 

 

There are multiple potential barriers for eligibility to the BN(O) visa. Primarily, the applicant must possess BN(O) citizenship, or considered to be a dependant of a BN(O) citizen. Further, the financial requirements are likely to be an issue in light of the currently undetermined application fee and cost of the immigration health surcharge. In light of these barriers, it is crucial to consider asylum as a route for political activists in Hong Kong who may be ineligible for the BN(O) visa. For a detailed overview of the BN(O) visa and all eligibility requirements, please see our previous article.

How to Claim Asylum

To be granted refugee status in the UK, a person must meet the definition provided in the 1951 Refugee Convention, which outlines five essential requirements:

1.The person must be outside of their country of nationality.

2.The person must have a well-founded fear of persecution.

3.The persecution must be the result of a "Convention Reason", which are: (i) race, (ii) religion, (iii) nationality, (iv) membership of a particular social group or (v) political opinion.

4.The person must be unable or unwilling to avail to the protection of their country of nationality.

5.The person could not reasonably relocate within the country of his/her nationality.

These five requirements provide a useful outline for how the Home Office will consider an asylum claim. For political activists in Hong Kong or other persons who fear persecution as the result of the changes in Hong Kong security law, the first three requirements will be most important. As a political activist in Hong Kong would fear persecution at the hands of the Chinese authorities, it is clear they could not avail themselves to the protection of the state and could not relocate within the country.

1. Requirement to be outside the country of nationality

To claim asylum in the UK, a person must leave their country of nationality and enter the UK. For persons in Hong Kong, the UK currently allows holders of BN(O) and HKSAR passports to enter and visit the UK for up to six months. Upon arrival in the UK, it is vital to consider when a BN(O) or HKSAR passport holder should claim asylum. Credibility is a core element of an asylum claim, and the failure to claim asylum at the earliest reasonable opportunity could damage a person's credibility under UK law which could have a significant impact on the outcome of the claim.

For HKSAR passport holders unlikely to be eligible for the BN(O) visa, it would be prudent to claim asylum immediately upon arrival at the UK border. For BN(O) passport holders, the question of when to claim asylum is more nuanced. The UK has provided routes outside of the immigration rules on a case-by-case basis, which may be suitable for persons who are unlikely to meet the requirements for refugee status.

2. A well-founded fear of persecution

The person claiming asylum must demonstrate that they have a well-founded fear of persecution. In essence, this is the "credibility test" of an asylum claim. The Home Office will assess whether the evidence of the asylum claim is consistent and plausible. A substantive interview with the asylum applicant is the primary method used by the Home Office to determine credibility.

"Persecution" is interpreted in UK law to mean serious harm combined with the failure of state protection. The element of "serious harm" is vital and represents a threshold of potential harm which a person must demonstrate. The UNHCR Handbook indicates that a threat to life, freedom, or a serious violation of human rights due to a Convention Reason will always constitute persecution.

Generally, the Home Office publishes its position on asylum claims via country policy and information notes (CPINs). For political activists in Hong Kong, the relevant CPIN published in February 2020 suggests that the profile of a political activist is the principal indicator of the risk of persecution. The higher the profile of a political activist, the more likely the Home Office will be to accept that Chinese authorities are actively targeting the activist and the risk of serious harm is recognised. Low-profile political activists would need to submit evidence to the Home Office to demonstrate that it is reasonably likely that they are at risk of persecution at the hands of the Chinese authorities. Generally, low-profile political activists would need to show that the treatment they are likely to encounter would amount to serious harm above the thresholds of discrimination or prosecution.

There are several types of evidence which the Home Office will consider. Valuable evidence can include official papers, membership cards, political pamphlets, social media/blog posts, photographs and other documents. A legal representative can advise you throughout your asylum claim and can assess your evidence and the likely impact it will have on your claim.

3. Convention Reason(s)

This article focuses on political activists in Hong Kong, and therefore political opinion (actual or imputed) of a person is likely to be the most relevant Convention Reason. However, it is crucial to note that multiple Convention Reasons can be present in an asylum claim. While this is outside the scope of this article, race, religion, or nationality are fundamental reasons which can lead to a risk of persecution. For example, a political activist belonging to a particular religion may increase or further substantiate the risk of persecution. The Convention Reason of membership of a particular social group can be intricate, and relevant characteristics such as sexuality may also apply to the claimed risk of persecution.

Steps for Claiming Asylum

The asylum process in the UK consists of the following steps:

Claim asylum upon arrival at the UK border or by telephone while in the UK.

Participate in a screening interview for the Home Office to collect personal details and assess whether the applicant is suitable for immigration bail.

Participate in a substantive interview to present a claim of asylum and related evidence to the Home Office.

The Home Office produces a determination of asylum claim (DOAC) which can either grant or refuse refugee status.

If granted refugee status, the refugee will be entitled to live, work and study in the UK for five years. After five years, a refugee will become eligible for settlement in the UK.

If the DOAC is negative and refugee status is refused, the applicant can appeal the decision with the Immigration and Asylum Tribunal.

In the unusual circumstances of COVID-19, the asylum process may vary from the above due to the impact on conducting face-to-face interviews. For instance, a substantive interview may proceed via video conferencing as appropriate. However, COVID-19 precautions do not affect the need for the Home Office to consider the claim and related evidence adequately and you are entitled to participate in a substantive interview to support your claim.

It is important that if you and your family take this life changing step to claim asylum in the UK that you take legal advice at the earliest opportunity to help you present your case to the Home Office.