Hong Kong: professional classes polarised by new British visa pathway system

Chris CroweMonday 1 March 2021

The United Kingdom has created a new visa pathway scheme for Hong Kong residents with a British National (Overseas) passport (BNO passport), which opened in January. Despite appearing supportive of the pro-democracy movement in this special administrative region (SAR), the new pathway scheme has not been universally welcomed by Hong Kong’s professional and business classes.

There are clear concerns over Beijing’s influence in the former British colony, particularly as a result of the new national security law – which was passed in June 2020 and has substantial implications for the SAR’s legal system – alongside some notable examples of diminishing freedoms.

However, there’s also unease about the UK’s pledge to give BNO passport holders a pathway to British residency.

Many see the pathway initiative as drawing attention to the tensions in the jurisdiction and potentially diminishing Hong Kong’s status as a premier financial, commercial and legal hub. And while some regard the UK’s offer as the honourable thing to do, others see it as misguided interference.

This craziness about democracy being given back to Hong Kong, we have never had democracy

Senior partner at Hong Kong law firm

The UK government predicts 300,000 people will use the new visa route in the first five years of the scheme.

However, Nicolas Rollason, Senior Vice-Chair of the IBA Immigration and Nationality Law Committee and Head of Business Immigration at Kingsley Napley in London, says that immigration traffic between Hong Kong and the UK has taken place for years and is unlikely to change significantly because of the new visa pathway system.

Many wealthy Hong Kong families have relocated to the UK for lifestyle reasons, including because of the education system, while maintaining a presence in Hong Kong for business purposes.

Rollason suggests that Hong Kong-based BNO passport holders may steer clear of the new visa pathway programme as a result of the political connotations and the possible effects on their businesses.

While the pathway may offer a cheaper and simpler means of immigration, more traditional methods are viewed as politically expedient and less controversial.

Recent protests in Hong Kong against Beijing have largely been driven by young activists and students, many of which, should they choose to leave Hong Kong, may not have the contacts or financial buffers to establish themselves in the UK.

However, the pathway scheme could be used as a means of attracting talented immigrants to the UK to make up for any lost capacity caused by Brexit.

Beyond the younger generation, the pro-democracy movement has gained muted support from older age groups, especially those that experienced life in the jurisdiction prior to 1997, when the British handed back control to China.

Jimmy Lai, the media tycoon, is one of few Hong Kong business leaders to be strongly critical of the Beijing and Hong Kong governments. Others have remained pragmatic or neutral on the subject in the hope that Beijing will not attempt to exert too much power.

Many within the legal profession have chosen to keep silent or take a neutral position over Beijing’s policy towards Hong Kong, not least because its status as a major Asian legal centre is under some threat.

‘This craziness about democracy being given back to Hong Kong, we have never had democracy’, says a senior partner at a prominent Hong Kong law firm, who asked not to be named.

In November 2020, the UK’s Foreign Secretary, Dominic Raab, expressed concern about British judges sitting on Hong Kong’s Court of Final Appeal, and said he had been in consultations with Lord Reed, the President of the UK Supreme Court, ‘concerning when to review whether it continues to be appropriate for British judges’ to sit in this way.

A senior dispute resolution partner in the Hong Kong office of a leading US law firm, who also spoke on condition of anonymity, questioned whether the removal of British judges would apply any pressure on China.

‘How would this ever force China to think again? It baffles me’, says the partner. ‘They talk about law lords endorsing the system in Hong Kong, but judges don’t endorse anything. They are simply there to apply the law.’

David Perry QC was initially appointed to represent the Hong Kong justice department in the prosecution of senior pro-democracy activists, but later withdrew from the case. His withdrawal was a result of ‘growing pressure and criticism from the UK community’, according to the Hong Kong government.

Hong Kong lawyers argue that his appointment simply illustrated the level of independence in the jurisdiction’s legal system.

‘We are able to handpick and invite the best judges from around the world to sit in our final court’, says the partner at the Hong Kong law firm. ‘There have been very few changes to the bench in the last five to ten years, so what has changed? Why is the Hong Kong judiciary seen as more corrupt or more persuadable?’

For some in the Hong Kong legal community, there is a belief that the furore over the new national security law and the tensions between Beijing and the UK have had a destabilising effect on Hong Kong’s reputation and status.

Singapore and Hong Kong have long stood out as the primary international legal centres in Asia, due to their well-developed legal systems and courts, both offering common law systems based on case law and precedent. Some are now concerned that Hong Kong’s recent troubles damage its prospects against Singapore’s rising status.

Anecdotally, Hong Kong’s courts have seen a reduction in big-ticket cases in the last two decades, in large part due to growth in the use of arbitration clauses that set Hong Kong as the seat of proceedings. With Singapore seeing a rapid increase in arbitration cases, there is a concern that arbitration clauses will gradually be swapped for Singapore instead of Hong Kong.

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