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Hadley Says

Hong Kong Right of Abode Application – Arguing Away Missing Periods of Residence

July 17th, 2012

Posted by / in Hadley Says…, Long Stay & PR / 19 responses


 

The essential approvability test for a permanent residency application in Hong Kong is that you have been continuously and ordinarily resident in the HKSAR for a period of not less than 7 years AND that you have taken concrete steps towards making Hong Kong your ONLY place of permanent residence.

“Continuously”, for the purposes of the test, effectively means that any absences from Hong Kong during that time were temporary and lasted less than 6 months.

Moreover, at the time you departed it must have been your intention to be absent temporarily only – as evidenced by what you leave behind in Hong Kong to return back to at the end of your temporary sojourn abroad.

The application form ROP 145 specifically asks for details, with reasons, in respect of any absences of more than 6 months, otherwise the Hong Kong Immigration Department do not expressly raise the issue – unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.

And the collection of documents you submit in support of your application should effectively envelope any missing periods of residence and should consist of Hong Kong tax returns, proof of accommodation, official bills, employment confirmations and, ideally, your Statement of Travel Records for the entire time you have lived in Hong Kong.

Oh, and you need to ensure that you have no outstanding taxation liabilities here as well – otherwise, your case will simply not be approved!

Other Related Stuff

Hong Kong permanent residency – interactive information

Hong Kong right of abode approval – with a 2 year absence from the HKSAR

The twists and turns of an unusual Hong Kong permanent identity card application

Losing Hong Kong unconditional stay due to studies abroad – a family’s dilemma

10 must have resources for a successful Hong Kong permanent residency application

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The Hong Kong Visa Geeza (a.k.a Stephen Barnes) is a co-founder of the Hong Kong Visa Centre and author of the Hong Kong Visa Handbook. A law graduate of the London School of Economics, Stephen has been practicing Hong Kong immigration since 1993 and is widely acknowledged as the leading authority on business immigration matters here for the last 24 years.

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RESPONSES
  • HtetS

    26 Dec 2016 pm31 8:18pm
    01

    I went to Raffles International College in Hong Kong and I am switching to a new school. I went to the immigration office and already extended my Visa. I’ve checked online and it’s still showing “in Progress”. I was told that it would take 3-4 weeks but it’s been longer than that. Will I need a new tourist visa to collect my extended visa or can I still use my old school’s visa to go collect it. I was told that my old school’s visa would expire in 4 weeks.

    • The Visa Geeza

      27 Dec 2016 am31 9:24am
      02

      If your previous student visa still has 4 weeks remaining then you will be in Hong Kong when ImmD grant you your extension of stay / change of school approval.

  • Michelle

    1 Sep 2012 pm30 3:10pm
    03

    Hi Stephen, great short article. I would like to clarify something though. In your article you said, “…unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.” Does this apply for CIES HKID holders? Because we we were absent for quite a significant amount of time (according to the immigration office), but only because we are capital investors, so we are still running businesses outside of HK. Is there any chance of arguing this? Once again, thank you for your time. – Michelle P.S. We = My family and I

    • The Visa Geeza

      1 Sep 2012 pm30 9:29pm
      04

      Hello again Michelle – thanks for stopping by and asking this important question.

      Please bear with me a short while – I need to set out the background to the visa type in order to give you a definitive answer

      When the Capital Investment Entrant Scheme was first implemented it introduced, for the very first time, a category of ‘potential’ resident that had, until that time, not existed in the realm of immigration statuses (stati?) in the HKSAR.

      Namely, foreign nationals could secure residency in Hong Kong ‘merely’ through the locking in of a set amount of capital into Hong Kong ‘assets’ as defined by Immigration Regulations from time to time; presently HKD10 million, previously HKD6.5 million.

      Under the CIES programme the HKID allow holders of this visa type, and their dependant families, the privilege of residence in the HKSAR all throughout the time they have locked their assets into Hong Kong, ostensibly to benefit Hong Kong through that value seemingly flushing around in the economy here.

      Whilst the CIES visa provides the opportunity for the holder to take up residence, there is no compulsion for them to do so. There is, unlike other jurisdictions, no ‘use-it-or-lose-it’ quality to the CIES visa.

      Consequently, the question was then begged as to what would happen to CIES visa holders at the end of seven years when, essentially, it becomes possible to apply for permanent residency and thereby be freed from the asset lock in conditions which had prevailed previously?

      For those CIES visa holders who have indeed taken up full time residency in the HKSAR throughout the prior 7 years and who can demonstrate that they have taken concrete steps towards making Hong Kong their only place of permanent residence (the “approvability test”) the process of converting to PR is relatively straight forward.

      But, where the CIES visa holder manifestly does NOT qualify for the Right of Abode, the HKID inadvertently created a policy lacuna in that, such people should also be able to have access to their locked up capital once again and so should be granted an immigration status which rewarded them for committing their capital whilst not punishing them for not qualifying for the Right of Abode.

      For those such CIES visa holders, seemingly yourselves included, you are entitled, automatically, to Unconditional Stay (“UCS”) 7 years after your first CIES period of stay was granted.

      The difference between the UCS and the Right of Abode is quite straight forward. UCS is an administrative convenience afforded by the Director of Immigration, whilst the Right of Abode is a statutory right, enshrined in the Basic Law.

      I have laboured the answer to your question in this way to illustrate to you how the HKID will be viewing your circumstances. Namely, the nature of the CIES visa anticipates people in your situation and sets out a ‘post-CIES’ immigration status where, by necessity or otherwise, you were never in a position to fully reside in Hong Kong nor put in place the vestiges of a life where you can properly declare that you’ve taken Hong Kong as your only place of permanent residence.

      The bottom line is that possession of a residence visa alone, supported by frequent visits to Hong Kong, is not sufficient to qualify for the Right of Abode.

      So the argument you are suggesting will not hold any water I’m afraid. The best you can expect to get is Unconditional Stay and, even then, you need to ensure that you all enter Hong Kong on at least one occasion each 12 months to maintain it – otherwise your 7 years of asset commitment to Hong Kong will all have been for naught.

      I am sorry the news is not better for you.

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