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Will I Still Qualify for the Right of Abode if I Worked Temporarily in Macau Yet Lived in Hong Kong for the Full 7 Years?

February 3rd, 2018

Posted by / in Long Stay & PR, Refusals & Appeals, Your Question Answered / 15 responses


 

I may be the middle of my NYC break but immigration stops for no man!

SMALL-keep-calm-and-ask-the-visa-geeza
Just before I left, I received the following question in regards to a Right of Abode application – which required me also taking a look at her documents. I’m grateful for the questioner’s permission to include our dialogue here on the Visa Geeza blog.

QUESTION

Hi, I got your details through Phil Whelan on RTHK Radio 3.

I just had my PR refused by Immigration because I was not covered by a work visa the entire time I have resided in Hong Kong.

During this period I took employment in Macau twice but I never lived there, I traveled daily via the ferry to Macau and back.

So each time I returned (every day) I got another 90 day visitor visa.

I applied for my Hong Kong permanent identity card via the online process and submitted rental receipts, Hong Kong tax documents etc. I can show that during the last eight years I have lived here exclusively.

Do think I have any chance of an appeal? I can send an email copy of the refusal letter I received. I assume there is a time period where I must act to request an appeal.

Thanks for your advice.

FIRST RESPONSE

Please email me a copy of your entire application and I’ll take a look and give you an opinion. Please include the copies of your correspondence with the HKID – send to: sbarnes [at] hkvisacentre [dot] com. Please also see this post.

INFORMATION SUPPLIED

Please find the attached copies of my PR application and supporting documents which I submitted online. The denial letter is attached separately.

I hope that you might find a good strategy for an appeal.

As I mentioned, I traveled to and from Macau daily for work and had proper Macau work permits (Blue Cards) twice but maintained my residence in Hong Kong.

I have many more supporting documents that prove my only residence during the eight year period I was in Hong Kong but was limited by the amount of supporting documentation upload slots (14 total I believe) available on the HKID website.

I have not contacted Mr. XXXX at HKID to confer, pose questions or ask for the appeal process pending some expert advice and consultation from someone like you.

I assume that there is a time period during which I must act if I wish to appeal.

 Thank you for your time and consideration.

OPINION

Essentially, when you ceased holding an employment visa in Hong Kong to take up employment in Macau, you inadvertently abandoned your continuity of residence here notwithstanding the fact that you maintained your home in Hong Kong at all times.

Time spent on visitor status in Hong Kong within the 7 years will only count towards permanent residency if it was the only status available to you as an application for a new residence visa or an extension to your current residence visa is being considered by the Hong Kong Immigration Department.

The HKID will allow you a few weeks on visitor status ‘between jobs’ but where you have manifestly ‘moved on’ to another jurisdiction (and Macau is as far away as Manila is for Hong Kong immigration purposes) your place of ordinary residence has moved away from Hong Kong too.

In short, you need back-to-back residence visas all throughout the 7 years immediately prior to submitting your PHKID application, otherwise your application will fail.

You could appeal to the Registration of Persons Tribunal but I don’t believe you’d have much joy.

They would no doubt confirm that the HKID didn’t err in your application and then you’d have to litigate in the High Court to promote the contention that ‘ordinary residence’ in the context of a Right of Abode application, includes time spent in Hong Kong as a Visitor whilst you’re working in Macau holding a residence visa there.

You’d be surprised at how many people misunderstand the 7 year rule, so don’t feel too badly about it.

RESPONSE

Thank you Stephen, for your thorough explanation.

I guess I’ll just have to wait another five years to apply again.

Please feel free to include my scenario on your website to inform others that they must have the work visas in place the entire seven year period.

That one sentence, if it were mentioned on the HKID website, would have stopped me from applying and wasting everyone’s time.

Thank you again.

More Related Stuff to Help You Along

What can be said to be ‘ordinary residence’ for the purposes of a Hong Kong right of abode application?

Will the 2 years I spent studying in China break my continuity of residence for my Hong Kong permanent residency application?

I have lived in Hong Kong for 5 years – can I extend my work visa for 2 years, quit my job, study full-time then apply for the right of abode?

Strategy on how to craft an argument to appeal a refused Hong Kong right of abode application

Hong Kong permanent residency approval with a 2 year absence from Hong Kong

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
  • My Question

    14 Jul 2017 am31 12:42am
    01

    Hi there, I’m wondering if you can give me some quick advice?

    I’m British, 51, hold a dependent visa through my HK Chinese wife (still married but separated, it’s complicated!) and have lived and worked in HK continuously since Jan 4, 2011. My dependent visa has been renewed continuously and is currently valid until March 6, 2019, which would easily take me over the 7 year mark and qualify me for my PR.

    However, since Aug 1, 2016 I’ve been living and working in Macau. I just got an opportunity I’ve been waiting for all my career, and at my age couldn’t afford to turn it down.

    I’m just wondering if you could give me any idea of whether come early next year when I hit 7 years and plan to apply for my PR, if the time I’ve spent out of HK will count against me. Would I be effectively considered non resident as I only return to HK every weekend?

    If that could be the case I would seriously consider commuting in every day for as long as it takes, although the early start is pretty horrendous – I’ve done it a few times and would prefer not to again unless absolutely necessary. Unless I’ve already broken the continuous residency clause because of the almost one year I’ve already been here?

    I’d really appreciate any advice on this. Many thanks in advance.

    Best wishes

    • The Visa Geeza

      14 Jul 2017 am31 8:15am
      02

      You need to be very careful about this. Macau is as far away as Monaco is for visa purposes and you need to be ordinarily resident in HK to maintain continuous residence for your right of abode eligibility in Hong Kong. At this stage if your marriage has irretrievably broken down it means your settled purposes of residence in HK for “family reunion” is defunct and as you are actually working outside of Hong Kong you cannot claim your settled purpose is “work”. If it has been a year already it might be too late. Suggest we arrange to speak. Please email me via our website to arrange a time that works.

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