- For BNO visa holders, divorce or separation does not affect a dependant’s right to stay.
- When applying for settlement (indefinite leave to remain), a minor child must apply with both parents. The exceptions are when one parent is absent, has sole custody or there are special circumstances, in which case one parent can lead the application.
- For settlement, you must not have spent more than 180 days outside the UK in any consecutive 12 months in the past five years.
- After a divorce in Hong Kong, if one parent wants to take the child abroad to emigrate, the court must grant an exit order (permission to take the child out of Hong Kong).
With the BNO Visa in place, many Hong Kong residents have moved to the UK. But even with the visa, there is no guarantee that you will meet every requirement for settlement.
During the five-year wait, if the main visa holder separates from their spouse or goes through a BNO visa divorce, they may worry about the effect on their settlement application.
The BNO visa in brief: children moving with their parents, and days spent outside the UK
The BNO visa gives holders of a British National (Overseas) passport, and their family members, a route to live in the UK.
Successful applicants can work, study and use public services in the UK, and may eventually apply for settlement and citizenship.
But this route of emigration also brings the complications of changes in family structure, especially divorce.
What affects children who emigrate with their parents
When a family settles in the UK on the BNO Visa, one parent often stays in Hong Kong to work. How this affects the accompanying children’s later settlement applications is a particular concern.
What matters is the child’s age when applying for settlement. A minor child applies with both parents, unless one of the following applies, in which case one parent can lead the application:
- One parent is absent
- Sole custody
- Special circumstances
But once the child is an adult, they can apply for settlement on their own, regardless of their parents’ status.
The specific rule on days spent outside the UK
A strict rule applies to settlement applications: in any consecutive 12 months in the past five years, you must not have spent more than 180 days outside the UK.
Please note
- In special circumstances, such as a global pandemic or the applicant’s particular medical needs, the Home Office may excuse days over the limit.
- For your own situation, it is best to ask a professional immigration adviser.
Not sure whether one parent can lead your child’s application?
Feel free to check your situation with us.
How marital status affects the BNO visa
Marital status is an important factor in a visa application.
A spouse is a family member of the applicant, and their visa status is usually tied to the main applicant’s.
So the end of a marriage can seriously affect both spouses’ right to stay, especially the spouse who is a dependant.
More divorce know-how
- Decree nisi and decree absolute in Hong Kong
- Hong Kong divorce agreements, petitions and joint applications explained
How a BNO visa divorce affects your immigration visa
For BNO visa holders, divorce or separation does not affect a dependant’s right to stay, which is different from other types of visa.
Even after separation or a BNO visa divorce, the dependant can still live in the UK lawfully and can apply for settlement once they meet the conditions.
Please note
- For families with minor children, the application depends on which parent the child goes with.
Some couples find harmony again once the move is behind them. Others find they cannot resolve their differences and choose to divorce.
Legal points in the divorce process
In the UK, a divorce must follow a set legal process, including:
- Division of property
- Child maintenance
- Arrangements for the children’s custody
BNO visa holders should pay particular attention to how these legal steps affect their immigration status, and how to protect their own interests while complying with UK law.
How flexible the BNO VISA policy is
The UK’s BNO policy gives applicants some flexibility. Under it, the following people can each apply on their own:
- BNO holders
- Their spouses or partners
- Minor children
If both of a child’s parents have BNO status, each can apply as a main applicant rather than depending on the other.
This gives some protection: if the parents divorce, the child still has the right to move to the UK and is not affected by either parent’s divorce.
Immigration applications after divorce
If only one spouse holds BNO status and the couple divorce, the other spouse may be granted special approval by the Home Office on humanitarian grounds.
Please note
- However, such special consideration depends on the facts of each case and the explanation the applicant gives, and not every case is approved.
More articles on dividing property after divorce
- How to secure the best maintenance after divorce
- What happens to the property and mortgage after divorce
- Housing arrangements for public rental flats after divorce
BNO visa emigration and divorcing in Hong Kong: what to weigh up
In deciding whether to divorce in Hong Kong or the UK, many legal and practical factors need to be weighed carefully.
| Divorce in Hong Kong | Divorce in the UK | |
|---|---|---|
| Legal process | Relatively familiar and convenient | May be more complicated |
| Applicable law | Hong Kong law has strict rules on custody of children and taking them out of Hong Kong after divorce | Takes place under UK law after you have settled in the UK for some time |
| Children and emigration | If one parent wants to take the child to emigrate, a court exit order is required | UK law may give more support to single-parent families moving there with a child |
In a Hong Kong divorce, you must agree custody and access arrangements, and applying for an exit order may delay emigration, especially at the critical time of the BNO Visa application.
After a Hong Kong divorce, if you want to take your child to the UK, the BNO Visa application must clearly set out the child’s custody position.
Please note
- When giving documents that prove custody, if the child’s future living arrangements are not settled, the Home Office may be hesitant about the child’s BNO Visa application.
Divorcing in the UK may raise different questions on custody, division of property and legal aid, but it can give the family more flexibility to rearrange things after emigrating.
But wherever you divorce, what matters is protecting the child’s best interests.
Before you decide, it is essential to seek advice from a qualified legal adviser.
They can advise on your circumstances, including custody, immigration law and the legal issues a cross-border divorce can raise.
Also consider the effect of divorce on the child’s mental health. Moving to another country is already a major life change.
Add the parents’ separation, and the child’s feelings and needs call for even more care.
More articles on divorce solicitors
- Why are divorce lawyers expensive?
- Why hire a solicitor for your divorce: the benefits and why it matters
- Free ways to consult a divorce solicitor, what a consultation covers and who to consider: a full guide
Not sure whether to divorce in Hong Kong or the UK?
Get in touch, and a dedicated consultant will first understand your situation.
A Hong Kong mother’s dilemma: divorce while emigrating to the UK on the BNO Visa
A Hong Kong mother posted online asking for advice about emigrating to the UK and handling a divorce.
She and her husband had decided to part ways because of incompatible personalities and differing views on emigrating to the UK, and she planned to move to the UK with their three-year-old child.
She asked how to handle the divorce and the emigration most efficiently:
- Should she complete the divorce in Hong Kong
- Or move to the UK with the child first and then apply for a cross-border divorce, to avoid possible legal and administrative obstacles
Although her husband agrees she can take the child with her, she still worries that going through a divorce in Hong Kong would complicate the child’s departure and so affect the BNO Visa application.
Challenges of a Hong Kong divorce
One online commenter warned that a Hong Kong divorce should be handled carefully, because officials take different attitudes, which affects whether an exit order is granted.
- Some officials will approve the child’s exit order once they know the address and the school name
- Others ask for detail, including housing, proof of a school place in the UK, and possibly proof that you have the means and work skills to look after the child
It also mentioned these steps:
-
Submitting the BNO Visa application
Proof of custody is needed when you submit
-
After getting the BNO Visa
Then apply to the Family Court for an exit order, making sure the other parent knows about and agrees to the child leaving Hong Kong
Debate on divorce strategy before and after emigrating
Please note
- Some commenters advised against rushing to divorce before moving to the UK, because the Home Office may not approve the divorce in a short time.
One suggestion is to apply for the BNO Visa together with your spouse. Even if your spouse does not plan to go to the UK, the child can enjoy 5 years of free education.
Another commenter suggested waiting until you have lived in the UK for one to two years before applying for divorce. If your spouse has not visited for a period, reporting the change in status to the Home Office would then be more favourable for settlement or naturalisation.
Advice on applying for settlement after divorce
Commenters also suggested considering different situations when applying for settlement:
- If you have already divorced, you can apply for settlement together with your child
- If you have not divorced, you can renew the child’s visa
- There is also the 10-year route: apply for settlement after living in the UK for 10 years, or wait until the child is 18
After settlement is granted, you can apply for naturalisation after one more year of residence.
Rebuilding your life after a BNO visa divorce
Rebuilding after divorce brings many challenges for BNO visa holders, including but not limited to:
- Language barriers
- Finding work
- Social integration
They need to seek social support and resources to help themselves and their family adjust to a new life.
For families with children, it is especially important to protect a stable environment for the children to grow up in.
Strategies to prevent and resolve marital problems
For BNO visa holders, the following can help them understand their rights and responsibilities, and give guidance and support when facing marital problems:
- Pre-marital counselling
- Legal advice
- Community support
Divorce is a hard transition for anyone, and especially for BNO visa holders, whose legal and everyday challenges need particular attention and support.
To meet these challenges, applicants must actively look for information and help, and rely on legal experts, social services and community support to find their way through this complicated process.
A BNO visa divorce is not only a legal matter but a social and emotional one. Through such a change, a person has to redefine their identity and life goals.
Not sure of your rights and responsibilities after divorce?
If in doubt, feel free to contact our dedicated consultants.
