In April of this year, the British government announced a £43 million fund to support Hongkongers emigrating to the country via the British National Overseas visa scheme. This move was warmly welcomed by Hong Kong community organisations, which have been campaigning tirelessly for the British government to make good on its promise to provide a safe haven to those fleeing the city’s repressive National Security Law (NSL).
Just weeks before, however, the Home Office unveiled its New Plan for Immigration, which sets out the legislative changes that are likely to be raised in Parliament via the Sovereign Borders Bill this summer. The New Plan features a massive overhaul of the asylum and immigration system, attempting to restrict people’s rights to claim and benefit from international protection based on their modes of entry—even though it is recognised in law that there is no “illegal” way to seek asylum. It will do so by introducing a temporary and precarious status for recognised refugees who have entered via irregular routes. Other proposals include reducing people’s ability to challenge removal decisions so that more people are deported at greater speed and with less oversight (including from immigration detention), opening the door to offshore processing sites for asylum seekers, and reducing protections given to survivors of trafficking and torture—among a litany of other dangerous ideas. At no point does the New Plan ask people about their personal experiences of fleeing persecution or seeking safety in the UK.
The New Plan is currently open for consultation, though the questionnaire is full of leading questions and statements. For example, within the consultation, the public is asked to express their view on the principle that “individuals seeking the protection of the UK Government should always tell the truth” on a scale of “strongly agree” to “strongly disagree”. Effectively, the Home Office has taken the opinion that too many people are allegedly “abusing the legal system” in order to remain in the UK and presented it as fact. The public is subsequently being forced to respond to the Home Office’s narrow proposals, with no opportunity to challenge the actual premise of the consultation.
There has been significant outcry from refugee and migrant communities, the migrant rights sector more broadly, and immigration and asylum law practitioners—nearly 200 organisations have condemned the consultation as a sham. European countries have also said that they will not agree to bilateral agreements to receive deported asylum seekers from the UK. But the Home Office’s mind is clearly made up: It wants to use the New Plan as a rubber stamp for its racist agenda.
How can we understand the BNO scheme and the New Plan for Immigration as concurrent developments in the UK’s immigration and asylum policy? How can we reconcile their seemingly opposing tendencies? The answer lies in the historical, moral, and political construction of the “good” versus “bad” migrant. This distinction, though appearing to benefit certain communities, is ultimately harmful to everyone because it reaffirms the state’s power to decide who “deserves” to be safe. As Hongkongers in the UK, we must resist co-optation into the British state’s racist agenda, and stand in solidarity with migrant communities in the fight for dignity, rights, and justice.
The problem of ‘illegal immigration’
To understand how the BNO scheme relates to the New Plan for Immigration, we must first situate each policy in their respective context. Hot on the trail of Brexit—a prolonged process that continuously resurfaced Britain’s racist core—the New Plan for Immigration delivers on the Conservative Party’s 2019 manifesto promise to “fix [the UK’s] immigration system” and to “ensure that the British people are always in control”. It does so by proposing solutions to “illegal immigration”. The concept of “illegal immigration” is well-embedded in the British imaginary. It is powerful precisely because it is amorphous and ill-defined, making it an easy target on which to pin a wide range of socio-economic problems that are actually rooted in the political and economic system.
The first example of “illegal immigration” that is usually conjured in the right-wing press is that of asylum seekers crossing the Channel from France to seek asylum in the UK. These people are often portrayed as “economic migrants” because they have decided not to claim asylum in the first safe country they reach after fleeing Syria, Iran, Iraq and other places, instead trying to reach the UK. The press is relentless in its portrayal of these asylum seekers as “scroungers” benefitting off the state’s generosity—notwithstanding the fact that people have reported abuse and even false imprisonment in state-provided accommodation, and that asylum seekers continue to be housed in decommissioned naval barracks which have been condemned by the independent Inspectorate of Prisons for being “impoverished, run-down and unsuitable for long-term accommodation”. For her part, the Home Secretary Priti Patel has continuously condemned “cruel criminal gangs” that engage in people smuggling as a problem that has “plagued” governments for decades.
Another example that usually comes to mind is “foreign national offenders”. In December, in the middle of a national pandemic, 23 people were taken off a deportation flight to Jamaica. The next day, blaring headlines fixated on the fact that dangerous “foreign national offenders” were being allowed to stay in the UK. Home Secretary Patel herself condemned these migrants for frustrating deportation decisions, aided and abetted by “leftie” and “do-gooding” lawyers. By creating the enemy as the “foreign national offender”, the British government is able to combine antipathy against migrants with antipathy against lawyers and judicial review, to ultimately undermine every person’s ability to hold the state to account over its decisions in the courts.
The New Plan for Immigration turns on the distinction between “legal” versus “illegal” migration. According to the Home Office’s definition, legal migrants are those who enter the UK via “legal routes” such as applying for a visa in advance. Illegal migrants are those who enter via “illegal routes” such as through smuggling networks. As highlighted by the migration studies scholar Lucy Mayblin, the word “illegal” appears 74 times in the 49-page policy paper, more than the word “refugee” (which appears 53 times) or “protection” (which appears 34 times).
From refugees to migrants
The Home Office’s distinction between “legal” and “illegal” migration is fundamentally incoherent and illegitimate, both from a moral and an international refugee law standpoint. The New Plan for Immigration fixates on a person’s method of migration to determine whether they are able to claim international protection. In doing so, it ignores the broader reasons for why people have to undertake perilous routes into the UK—precisely because Britain’s restrictive border policies make entry nearly impossible unless you are rich and/or white. It also ignores the fact that there is no such thing as an “illegal” way to claim asylum. Furthermore, the New Plan has disastrous implications for all migrants’ ability to make claims that may pertain to their most fundamental rights through a range of policies designed cynically under the banner of “streamlining” the immigration and asylum system and “protecting taxpayers’ money”.
Part of the strategy used by the Home Office in creating the “legal” and “illegal” migration distinction, is to conflate “asylum seekers” with “migrants”, and to portray these “migrants” as “illegal immigrants” until proven otherwise. The New Plan, following in the footsteps of the British media and the Home Secretary herself, portrays people crossing the Channel as “illegal immigrants”, because they have failed to claim asylum in other European countries—ignoring of course the well-established fact that many so-called “first safe countries” are actually unsafe for asylum seekers. Within this logic, people crossing the Channel are “economic migrants” who are trying to “cut the queue” to enter the UK. And once they arrive, they are a drain on taxpayers’ money (of course, this ignores the fact that the No Recourse to Public Funds condition stops most migrants from accessing mainstream benefits, that asylum seekers do not have the right to work, and that asylum support is extremely paltry. Meanwhile, there are daily revelations about the British government’s misuse of public funds).
Fundamental to the concept of “economic migration” is the idea that such migrants are “voluntary” rather than “forced” migrants—that is, people who are choosing to leave their home country, rather than who have been forced to do so. Within this logic, “voluntary” and “illegal” migrants are bad, and “involuntary” and “legal” migrants are good. Effectively, the Home Office is trying to shore up the idea that “illegal migrants” who enter the UK via illegal means, are stopping “legal migrants”—who are patiently waiting their turn—from entering the country. This is because, for example, the legal system is being exhausted by “unmeritorious claims”, which stop “real claims” from being presented and accepted.
What this does is to create and reinforce a “hierarchy of desert”: a system whereby certain migrants are deemed to “deserve” to enter and stay in the UK—so long as they fulfill certain arbitrary and historically decontextualised criteria imposed by the state—and others are cast as “undeserving.” The New Plan goes a step further and claims that “good” and “legal” migrants who have left their countries of origin involuntarily are being stopped from claiming their rightful place in the UK by “bad migrants” who are trying to take the “easy way out”. It therefore follows that the Government should do all it can to protect the former while removing the latter as quickly as possible. “Good” migrants deserve the British public’s sympathy, whereas “bad” migrants—especially those who abuse their position by committing crimes in the UK—should be detained and deported with as little cost to the taxpayer as possible.
HK BNOs: From migrants to refugees
If the claims in the New Plan are to be believed, Britain has been nothing but welcoming to genuine asylum seekers—the proverbial “good” and “legal” migrant. This is where the Hong Kong example comes in. In her announcement of the New Plan, Home Secretary Patel referred conspicuously to the recently-introduced British National Overseas (BNO) scheme as evidence of Britain’s generosity. Indeed, the first page of the Foreword to the New Plan states, “We also take pride in fulfilling our moral responsibility to support refugees fleeing peril around the world… This year we have extended support to British National (Overseas) status holders and their family members threatened by draconian security laws in Hong Kong, creating a new pathway to citizenship for over 5 million people.”
The implication here is that the BNO scheme is an achievement in Britain’s refugee policy. But crucially, the BNO visa is not an asylum scheme. The BNO visa is only open to those who already have BNO status—that is, those who applied for and received a BNO passport in the ten years prior to the handover on 1 July 1997. In other words, eligibility for the BNO scheme is a historical accident and wholly arbitrary. Those who do not have a BNO passport—that is, anyone born after the handover to China on 1 July 1997, or whose parents or who themselves did not apply for a BNO passport while they were still eligible—must seek asylum in order to remain in the UK. Other conditions and fees also apply.
By conflating Hong Kong BNO passport holders with refugees, the Home Office is trying to obfuscate its actual record of accepting and resettling people in need of protection.
This is not an error but a calculated move on the part of the Home Office. By conflating Hong Kong BNO passport holders with refugees, the Home Office is trying to obfuscate its actual weakening record of accepting and resettling people in need of protection. Nonetheless, the wide scope of beneficiaries to the BNO scheme remains highly exceptional, given the sheer numbers of people who might take advantage of it to settle in the UK. At the British Government’s estimate, almost 3 million people could qualify for the BNO visa.
Effectively, Patel and the Conservative government have constructed every one of these people as a refugee—a blanket construction that goes against the logic of Britain’s non-entree regime, i.e. that protection and status should only be granted to those who are able to show that they have experienced some exceptional form of harm, and that all other migrants should be considered “economic migrants” (or any other kind of migrant) who do not deserve entry. The question is, why?
Conflating BNO rights with refugee rights is a double whammy for the beleaguered Home Office. First, the Home Office can use the scheme to demonstrate its alleged generosity towards “people in need of protection”—ignoring of course that BNO passport holders are eligible for the visa not by virtue of their experiences of political oppression or vulnerability to persecution (though of course many people will have such experiences), but because they possess a historically-specific nationality—while simultaneously implementing a raft of policies that will severely restrict the right to seek asylum in the UK. It can shore up the UK’s reputation as “Global Britain”—with none of the international responsibility.
The enduring myth of Hong Kong as a ‘benign colony’ within the British imaginary has led to the construction of Hong Kong migrants as ‘upright’ and ‘civilised’—in other words, normatively ‘good’ migrants.
Second, the Home Office can portray itself as bringing in “desirable” migrants, satisfying a broad base of Conservative voters who, while not at the furthest end of the right spectrum, believe that Britain should only open its doors to “the best and brightest.” The enduring myth of Hong Kong as a “benign colony” within the British imaginary, and the lack of awareness or continual refusal to acknowledge the ways in which the British colonial government laid the groundwork for Hong Kong’s current political and economicplight, has led to the construction of Hong Kong migrants as “upright” and “civilised”—in other words, normatively “good” migrants. Indeed, the media’s and many politicians’ rhetoric about new Hong Kong migrants has focused heavily on their ability to contribute economically and culturally to British society. Various figures have commented on how the arrival of new Hong Kong migrants may be a way of making up for the losses incurred after Brexit. Of course, none of this can be divorced from the broader systems of global racism and racial capitalism that situate light-skinned Han Chinese Hongkongers as a “model minority,” in comparison to Black and brown people (which ostensibly encompasses the “bad” migrants targeted by the New Plan for Immigration). The ultimate effect of this is to consolidate power amongst an increasingly emboldened and racist supporter base.
These stereotypes have had material implications on BNO visa holders’ lives. In spite of the stereotypes surrounding the potential beneficiaries of the BNO scheme, BNO visa holders are a diverse group with varying levels of social and economic capital. BNO visa applicants may scrape together money from friends and relatives to pay for the Home Office’s hefty fees, including the immigration health surcharge.1
The requirement of the BNO visa that applicants show they can be self-sufficient for the first six months of their stay can be daunting for many. Yet prior to March 2021, BNO visa holders who were destitute or close to destitute had no access to state support in the UK due to the No Recourse to Public Funds condition, which prevents most migrants from accessing benefits. 2 The Government’s recently-announced £43 million fund, which aims to help new arrivals settle in the UK, is a step in the right direction. But Hong Kong community groups will need to closely scrutinise the distribution of the money and ensure that it is actually used to support Hongkongers in need.
More broadly, the effect of all of this rhetoric is to solidify the binary of “good” versus “bad” migrant in the public imaginary, making it easier to demonise and vilify people who fall into the latter category. This is part of a broader culture war being waged against the British Government, led by the Conservative Party, to consolidate power and to erode everyone’s ability to hold the state accountable, starting with the rights of migrants—precisely because the Government can count on the wider public to acquiesce to such attacks.
Hong Kong asylum seekers
For all that it does to wax lyrical about the BNO scheme, the New Plan, and indeed, the Home Office in all of its announcements regarding Hongkongers in the UK, makes no mention of Hong Kong asylum seekers. Yet it is precisely Hong Kong asylum seekers who are most likely to have experienced political persecution. All BNO passport holders are over 23 years old, whereas one third of Hong Kong protesters in the 2019-2020 protests were under the age of 18.
Asylum seekers from Hong Kong—like all asylum seekers—face a steep, uphill battle against a system that is primed to reject claims. To see this “culture of disbelief” in action, you only have to look at the Home Office’s November 2020 guidance note on the national security law in Hong Kong, which states: “The application of the NSL is likely to depend on a person’s profile/activity and possibly their background with high profile activists likely to be at a higher risk of arrest and prosecution.”
The implication here is that in order to show that one has a well-founded fear of persecution (which is required to successfully claim asylum), one must be a high-profile activist. But this is narrow and extremely misguided. First, the nature of the national security law is such that anyone can be targeted at any time for any arbitrary action—indeed, the law has even been used retrospectively and applies extraterritorially. Second, the use of the concept of “high profile” versus “low profile” in the Hong Kong movement belies a fundamental lack of understanding of how, from the beginning, protesters were cautious about remaining anonymous (given the history of reprisals after the Umbrella Movement) and how the very fact of anonymity actually became a key feature of the “leaderless” movement. By this token, only those who are already established political figures—if they have not already been arrested—would qualify for asylum, whereas a person who participated in the protest, even if they have a well-founded fear of being arrested under the NSL, would be unlikely to qualify.
Are Hong Kong asylum seekers “good” or “bad” migrants? Within the Home Office’s logic, they might well fall into the latter, particularly if they come to the UK first using a tourist visa (thus failing to claim asylum right from the beginning and thereby acting “dishonestly”) or if they attempt to challenge any removal decision that is made against them (given the Home Office’s seeming antipathy towards any criticism of its decision-making). On another level, Hong Kong asylum seekers, likely to be younger and less wealthy, may also be “bad” migrants in the sense of having little to contribute to the UK—unlike the idealised Hong Kong British National Overseas visa applicant, who is required at the outset to have a set amount of funds to survive in the UK and is seen first and foremost as a source of social and economic capital.
What the New Plan shows via its constant redefinitions of migrant categories—”asylum seeker” versus “economic migrant”, “legal” versus “illegal”, “good” versus “bad”—is that borders and the systems upholding them are at their core instruments of upholding the interests of nation-states. The “legal” versus “illegal” migrant distinction was created to demonise migrants trying to enter Fortress Britain; the “forced” versus “voluntary” migrant distinction boils migration down to individual choice and pins the blame on individuals for trying to search for a better life, rather than on the global structures of power that have rendered life and its possibilities so differently across the world.
The ultimate effect of these categories is to obscure the fact that there are many reasons why someone chooses to migrate, and these decisions are always structured by material conditions. For example, in some former colonies, British colonialism may have instituted political regimes and economic systems that have rendered life unlivable, forcing people to try and find a better life in the UK. (A. Sivanandan coined the phrase “we are here because you were there” to describe this phenomenon of postcolonial migration.) Any attempt to “reform” the asylum and immigration system that ignores the historical claims that people may have to enter the UK function to entrench what Stuart Hall called Britain’s problems with “colonial amnesia”—the selective forgetting of Britain’s violent history. Colonial subjects produced (and continue to produce) the wealth that continues to accrue in the British metropole. As argued forcefully by Nadine El-Enany (2020), “Britain’s relationship with its colonies was one of domination and exploitation and maintained for the economic and political advantages that accrued to Britain… through immigration law’s policing of access to colonial spoils… the racial project of capitalist accumulation is maintained.”
A necessary consequence of the complex decision to migrate is the method of migration. What the Hong Kong example shows is that the decision of method is fundamentally an arbitrary one. Hong Kong people born after July 1, 1997 have no choice but to claim asylum, whereas those born before have the opportunity to access the BNO route, even if they may have experienced the same or similar forms of political persecution. More generally, how people move is usually decided for them by reasons beyond their control—Fortress Britain and the lack of availability of safe routes into the UK makes Channel crossings and smuggling the only option for people seeking entry. To penalise people for such actions is therefore completely nonsensical, and clearly a red herring designed to stoke populist racism and further demonise people for doing everything they can in order to survive.
Having benefited from the apparent generosity of Priti Patel and Boris Johnson, some Hongkongers may feel as if they should be grateful to the UK for its generosity towards BNO passport holders. But we must understand that the New Plan for Immigration will have a direct impact on people we call our “brothers and sisters”—Hong Kong asylum seekers, who face being locked out of safety and security in the UK, simply because they were born the wrong year, or because their parents didn’t apply for a BNO passport for them.
Fundamentally, we should not allow relief at attaining safe sanctuary to stop us from empathising with and standing in solidarity with others battling the UK’s fundamentally flawed and restrictive asylum and immigration system. We should not allow ourselves to be co-opted by the British state in its attempts to shore up racist and divisive policies—not least because these logics have the potential to hurt the most vulnerable within our own and other migrant communities. Instead, we should look to the work of community organisers who have been mobilising for justice for all for decades, and learn from their example.
It is hopefully self-evident that every person has the right to be protected from violence and to live with dignity, regardless of the passport they hold. For this reason, and against the rhetoric and machinations of the British state, Hongkongers in the UK—and indeed, all migrants and allies—have a duty to unite in solidarity in the fight for rights, dignity, and respect for all. Together, we must make our voices heard and reject the New Plan for Immigration.
If you are a Hongkonger, have Hong Kong heritage, and/or are a member of the British East and Southeast Asian community, and/or are an ally, you can take action by responding to the New Plan for Immigration consultation and making your voice heard.
— “I believe that everyone has the right to live free from persecution. I believe everyone has the right to live in safety, with dignity and respect.”
— “As a Hongkonger/person with Hong Kong heritage/member of the British East and Southeast Asian community, I reject the framing of Hong Kong BNOs as refugees and the use of Hong Kong BNOs as a rhetorical cudgel against other migrants, including asylum seekers and refugees.”
— “I believe the New Plan stokes racist and xenophobic resentment against all migrants, including asylum seekers and refugees. It is also divisive, pitting so-called ‘good’ migrants against ‘bad’ migrants.”
Under the BNO visa scheme, if you are from Hong Kong and are a British national (overseas), you and your family members can apply to stay in the UK for either 2 years and 6 months, or 5 years. The application for a BNO visa includes a visa application fee (£180 if you’re applying for 2 years and 6 months; £250 if you’re applying for 5 years), a healthcare surcharge (for adults, £1,560 if you’re staying for 2 years and 6 months and £3,120 if you’re staying for 5 years; and for child, £1,175 if you’re staying for 2 years and 6 months and £2,350 if you’re staying for 5 years). You must also show that you have enough money to pay for your housing and to support yourself and your family for 6 months (the Home Office provides that you’ll need about £2000 as a single adult, £3100 as a couple with a child, £4600 as a couple with 3 children, and £9200 as a couple with 2 parents and 2 adult children). After you’ve lived in the UK for 5 years under the BNO visa, you can apply to live in the UK permanently.
For those who now apply for a change in conditions so that they can access public funds, the offer is less than generous. In the UK, the rate of financial support is £37.75 per week. This figure is determined on the basis of what the poorest 10 per cent of the British population spend per week on essential living items only (Lucy Mayblin, Asylum after Empire: Colonial Legacies in the Politics of Asylum Seeking, Rowman & Littlefield International, 2017, 168.). That is, “the bare minimum to enable survival irrespective of whether an individual is surviving in poverty” (Lucy Mayblin, Mustafa Wake, and Mohsen Kazemi, “Necropolitics and the Slow Violence of the Everyday: Asylum Seeker Welfare in the Postcolonial Present,” Sociology 54, no. 1 (February 2020): 107–23).