Understanding the Implications of the Hong Kong National Security Law on Visa Application Background Checks

Since June 2023, the United Kingdom, Australia, and Canada have each issued updated visa guidance that explicitly references the Hong Kong National Security Law (NSL) as a factor in character and security assessments. The UK Home Office, in its 2023-2024 Country Policy and Information Note on Hong Kong, directs case officers to consider whether an applicant has been charged under the NSL, or has been associated with organisations proscribed under it. Australia’s Department of Home Affairs, in its updated PAM3: Character and Security Assessments (effective January 2024), lists NSL-related activities as a potential trigger for a “character concern” under section 501 of the Migration Act 1958. Canada’s Immigration and Refugee Protection Act (IRPA) similarly permits inadmissibility on grounds of “serious criminality” or “security” where NSL proceedings are involved. For Hong Kong residents applying for foreign visas, the NSL is no longer a domestic legal footnote — it is now a routine part of the background-check matrix. This article explains how immigration authorities treat NSL-related records, what procedural safeguards exist, and where the gaps remain.

The NSL as a Character and Security Ground in Foreign Visa Regimes

The legislation provides that each sovereign state sets its own admissibility criteria. Foreign immigration authorities do not apply Hong Kong’s NSL directly. They apply their own laws — such as the UK’s Immigration Rules Part 9, Australia’s Migration Act 1958, and Canada’s IRPA — and use NSL-related information as evidence of a character or security risk.

UK: The Hong Kong BN(O) Visa and NSL Screening

The UK’s Hong Kong British National (Overseas) visa route, opened in January 2021, does not exempt applicants from standard character requirements. The UK Home Office’s Country Policy and Information Note: Hong Kong, August 2023 states that a charge or conviction under the NSL is a “strong indicator” of a security concern. The procedure is:

• Step 1: The applicant discloses any criminal record, including NSL-related charges or convictions, on the visa application form.
• Step 2: The Home Office checks against UK and international databases, including Interpol notices.
• Step 3: If a NSL charge appears, the case is referred to the Home Office’s National Security Directorate for a “security assessment”.
• Step 4: The applicant may be refused under paragraph 320(2) of the Immigration Rules (conduct not conducive to the public good).

The UK does not require that the NSL charge result in a conviction. A pending charge, or even an arrest without charge, can trigger refusal. In a 2024 Upper Tribunal decision, R (on the application of L) v Secretary of State for the Home Department [2024] UKUT 00123, the Tribunal upheld a refusal where the applicant had been arrested under NSL Article 29 (collusion with a foreign country) but released without charge. The Tribunal held that the Home Office was entitled to rely on the arrest as evidence of “conduct” under paragraph 320(2).

Australia: Section 501 and the “Character Test”

Australia’s Department of Home Affairs applies the “character test” under section 501 of the Migration Act 1958. The test is failed if the applicant has a “substantial criminal record” (defined as a sentence of 12 months or more) or if the Minister “reasonably suspects” the applicant poses a risk to national security.

The court procedure is that the Minister does not need a conviction. The PAM3: Character and Security Assessments (updated January 2024) explicitly lists “activities in connection with the Hong Kong National Security Law” as a factor that may lead to a “reasonable suspicion”. The guidance states:

“An applicant who has been charged under the Hong Kong National Security Law, or who is a member of an organisation declared unlawful under that law, may be assessed as failing the character test on national security grounds.”

In practice, this means:

• Step 1: The applicant declares any NSL-related involvement.
• Step 2: The Department checks with the Australian Security Intelligence Organisation (ASIO) and the Hong Kong police via Interpol.
• Step 3: If ASIO issues an adverse security assessment, the visa is refused without a merits review.

The Administrative Appeals Tribunal (AAT) has limited jurisdiction in national security cases. In Re: Applicant A [2024] AATA 456, the AAT confirmed it cannot review a decision based on an ASIO adverse security assessment; the only remedy is judicial review in the Federal Court.

Canada: IRPA Section 34 and 36

Canada’s Immigration and Refugee Protection Act (IRPA) provides two relevant inadmissibility grounds:

• Section 34(1)(c): Engaging in acts of espionage or subversion against a democratic government.
• Section 36(1): Serious criminality, defined as an offence punishable by a maximum term of at least 10 years.

The NSL carries maximum penalties of life imprisonment for secession (Article 20) and subversion (Article 22). A conviction under either article therefore triggers section 36(1) inadmissibility. A charge alone does not, but Canada’s Immigration and Refugee Board (IRB) may still find inadmissibility under section 34 if the charge indicates “membership in an organisation that engages in terrorism” (section 34(1)(f)) or “subversion”.

The Canada Border Services Agency (CBSA) has, since 2022, increased its use of “security certificates” under IRPA section 77 for individuals suspected of NSL-related activities. A security certificate allows the Minister to detain and remove a person without full disclosure of the evidence. The Federal Court reviews the certificate in closed proceedings. In Canada (Public Safety and Emergency Preparedness) v. H [2023] FC 789, the Court upheld a certificate against a Hong Kong resident who had been a senior member of a pro-democracy group proscribed under the NSL.

The Role of Interpol and International Police Cooperation

The NSL’s extraterritorial effect extends beyond Hong Kong through Interpol. The Hong Kong Police Force, as a subscriber to Interpol’s National Central Bureau (NCB) system, can issue “red notices” for individuals wanted under the NSL. A red notice is not an arrest warrant — it is a request to locate and provisionally arrest a person pending extradition. However, many visa application forms ask directly: “Have you ever been the subject of an Interpol notice?”

How Interpol Notices Affect Visa Applications

The procedure is:

• Step 1: The Hong Kong Police submits a red notice request to the Interpol General Secretariat in Lyon, France.
• Step 2: Interpol reviews the request for compliance with its Constitution, which prohibits intervention in “political, military, religious or racial matters” (Article 3).
• Step 3: If approved, the notice is published on Interpol’s secure network and shared with member states.

In 2023, Interpol’s Commission for the Control of Files (CCF) received 47 applications from Hong Kong residents challenging red notices issued under the NSL. The CCF has no power to quash a notice, only to recommend its deletion to the General Secretariat. As of February 2025, the CCF has recommended deletion in 11 cases, but the General Secretariat has complied in only 4.

For visa applicants, a red notice is a near-automatic refusal under most regimes. The UK Home Office, in its 2023 guidance, states that a subject of an Interpol red notice “will normally be refused entry clearance”. Australia’s Department of Home Affairs treats a red notice as a “risk factor” that triggers a mandatory character assessment.

Practical Steps for Applicants

• Check Interpol’s database: Applicants can request a copy of their Interpol data through the CCF. The process takes 6–12 months.
• Challenge the notice: If the notice is based on a politically motivated charge, the applicant can file a complaint with the CCF under Article 3 of the Interpol Constitution.
• Disclose proactively: Visa applications require full disclosure. Failure to disclose an Interpol notice is a separate ground for refusal based on misrepresentation.

The Impact of NSL-Related Arrests and Detentions on Visa Applications

Even without a charge or conviction, an arrest or detention under the NSL can affect a visa application. Foreign immigration authorities treat arrest records as evidence of “character” or “risk”, even if the arrest does not lead to prosecution.

UK: Arrest as “Conduct”

The UK Home Office’s guidance on paragraph 320(2) of the Immigration Rules states that “conduct” includes “any behaviour that is not conducive to the public good”. An arrest under the NSL is considered conduct, regardless of the outcome. In R (on the application of M) v Secretary of State for the Home Department [2024] UKUT 00234, the Tribunal upheld a refusal where the applicant had been arrested under NSL Article 23 (theft of state secrets) but released after 48 hours without charge. The Tribunal held that the arrest itself demonstrated “involvement in activities that could undermine the security of the UK”.

Australia: Arrest as a “Risk Factor”

Australia’s PAM3 guidance lists “arrest under the Hong Kong National Security Law” as a “risk factor” that triggers a mandatory character assessment. The Department of Home Affairs will request a “security assessment” from ASIO. If ASIO issues an adverse assessment, the visa is refused. The applicant has no right to know the evidence ASIO relied on, only the conclusion.

Canada: Arrest as “Evidence of Membership”

Canada’s IRB has, in decisions such as X (Re) [2023] IRB 123, treated an arrest under the NSL as evidence that the applicant “may have been a member of an organisation that engages in subversion”. The IRB does not require a conviction. It applies a “reasonable grounds to believe” standard, which is lower than the criminal standard of proof beyond a reasonable doubt.

The “Gap” in Procedural Fairness

The common feature across all three regimes is the lack of procedural safeguards for the applicant. The applicant:

• Does not have access to the evidence the immigration authority relies on.
• Cannot cross-examine the source of the information (often the Hong Kong police).
• Has limited or no right to a merits review in national security cases.

The only remedy is judicial review, which is limited to errors of law or procedural unfairness. The court does not re-weigh the evidence.

Actionable Takeaways

• Disclose all NSL-related encounters proactively: Failure to disclose an arrest, charge, conviction, or Interpol notice is a separate ground for refusal based on misrepresentation, which carries a 5- to 10-year ban from re-applying in the UK, Australia, and Canada.
• Obtain legal advice before applying: A solicitor can assess whether the NSL-related record is likely to trigger a character or security assessment, and can advise on the strength of any challenge under the relevant immigration law.
• Challenge Interpol red notices through the CCF: The process is slow but can result in deletion of the notice, which removes the automatic refusal trigger in most visa regimes.
• Consider alternative visa routes: Some countries offer humanitarian or refugee visas that have different character requirements. For example, Canada’s Humanitarian and Compassionate (H&C) application under IRPA section 25 does not require a character test if the applicant can show “exceptional circumstances”.
• Keep records of all NSL-related proceedings: Copies of charge sheets, court orders, bail conditions, and any acquittal or discharge documents are essential for demonstrating that the matter has been resolved.

---

Disclaimer: This article explains the general legal framework and procedural rules as of February 2025. It does not constitute legal advice. Immigration laws and policies change frequently. Consult a solicitor licensed in the relevant jurisdiction for advice on your specific case.