New Content Daily Sign Up Here

This post deals with the requirements for getting permanent residency in Hong Kong

The modern, connected economy throws up myriad ways for people to organize their lives and business affairs and, as can be seen from this great question, how might ImmD respond to an application for the Right of Abode where an internet entrepreneur bases himself here with his family but they choose to spend a considerable amount of time elsewhere?

QUESTION

Hi Stephen – I just stumbled across your website and found it to be quite informative, especially regarding the Hong Kong Right of Abode Application – Arguing Away Missing Periods of Residence.

It seems to fit my facts quite similarly.

My wife and I first arrived here in April of 2011. I was on a working visa but in some ways it was similar to an investor visa. I have always been an online internet entrepreneur, opening, running and closing dozens of online businesses. They have always been run from an offshore “haven” location where essentially there is no need to maintain books or file annual tax returns.

As my citizenships don’t require me to pay taxes on worldwide income and as I had been essentially a resident of nowhere, basically a perpetual tourist for the past many years, I haven’t really had to settle down in any way.

So, in early 2011, upon hearing from me that I wanted to move to and settle into Hong Kong, my lawyer arranged for my offshore company to buy a defunct Hong Kong company and then have that Hong Kong company sponsor me for an employment based visa in Hong Kong.

That all seemed to work quite smoothly and I was in HK in just a few months from start to finish.

Since arriving in Hong Kong with my non-Hong Kong wife in early 2011, we have recently had a baby. The problem is that we like Hong Kong and have made it our primary home, renting a nice flat, sponsoring a live-in DH, moved our bank accounts here, receive all of our mail here, pay our salaries annual taxes here, I own the business here, pay its fees, rent an office, pay the business profits taxes, etc., etc. – basically spend a lot of money in Hong Kong for all of these things to put up the appearance of being a full-time resident.

But, we really don’t like spending all of our time in Hong Kong. We have homes in several other countries, whether our own or family homes, and I really don’t need to be in any one location in Hong Kong or anywhere to run my business affairs.

Until our children are required to be in school for 8-9 months of the year, I’d prefer to keep traveling.

My work is all done via laptop and cell phone. Arguably I could say that some of this travel is necessary for work, as I do meet or host clients from time to time, but maybe 1/3 at the very most and I don’t keep receipts or claim them as business expenses. 

The only employees of the Hong Kong subsidiary are me and two admins, and they really only take care of Hong Kong affairs and little else. We do like spending some time in Hong Kong, maybe a few months per year in total, but spend the rest of our time on holiday, as much as 9-10 months of the year. I hope to continue this pattern until we have reached the 7 year mark in early 2018, at which time I’d like to apply for and hopefully receive our permanent residency.

And, despite what may seem like lack of ties to Hong Kong, we have by far much more attachments to Hong Kong than anywhere else in the world  , though my wife and I are each dual nationals of two different countries (4 passports between the both of us) so we certainly would call Hong Kong home above all else.

Would this pattern jeopardize our permanent residency application? It would be precisely at this time, when 7 years will have been reached that we’ll finally be forced to settled down and set our oldest child into primary school and we would plan to do so in Hong Kong.

I do want to ultimately obtain PR status, but also want to spend most of my time until that time traveling abroad. I’d like to find out now rather than later, for if I am wasting my time with this and there is a chance my PR application would be rejected, I’d just as well give up the HK office, the HK business, the 2 admins, the rented flat, the DH, basically all of it, move everything back offshore and rent a suite at the four seasons for the 2 months of the year that I might actually be in Hong Kong, for it would be a LOT cheaper.

So, am I wasting my money continuing this charade for many more years or will it all work out in the end as long as I maintain all of the things that tie us to Hong Kong?

So, can I get Permanent Residency in Hong Kong?

ANSWER

The test for Right of Abode for a long stay foreign national resident of Hong Kong is to be able to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, and that any absences from Hong Kong in that time have been of a merely temporary nature as evidenced by what you leave behind to return back to at the end of each temporary stint abroad.

You also need to show that you have settled in Hong Kong at the time that you make your application for permanent residency. So on the facts that we’ve got in this question it would appear that you’ve actually got in place all the necessary presumptive evidence to denote that you are settled in Hong Kong.

The fact that you’ve got a home, the fact that your child was born in Hong Kong, you’ve got a full time sponsored foreign domestic helper, you’ve got your business in Hong Kong, you’re reporting for tax purposes in Hong Kong, you have an office and you’ve got a couple of employees, and on the basis and on the assumption that you continue to maintain all of that in situ for the rest of the time that you spend in Hong Kong, on the strength of that evidence, there is enough presumptive evidence to show that you are, for all practical purposes, settled in Hong Kong.

Now this then turns to the nub of the question, which is how much time is expected for you to be spending in Hong Kong to settle the idea of continuous ordinary residence. Continuity is, on the face of it, established through the maintenance of immigration status, residents immigration status back to back throughout all of that time; and therefore we then just need to look to the number of days and how that impacts on the perception of your notion of being settled up to and including the seven year mark. If you’ve got a really good reason for you spending a lot of time outside of Hong Kong, then the Immigration Department will accept that, for what it is ostensibly in the vast majority of cases this  is settled through the fact that your commercial activities, your commercial endeavours whilst ostensibly based in Hong Kong are keeping you away from Hong Kong.

Question is then begged as to what about the situation where if you choose voluntarily to spend time away from Hong Kong because that’s what you prefer to do? And how would the Immigration Department perceive that as, in a sense, negating your idea of ordinary residence; the law, in actual fact, the common law, allows you to have a place of permanent residence, believe it or not, in two different places. You can be ordinarily resident in more than one place, any one point in time. But that’s an argument that you don’t really want to be having with the Immigration Department. What it’s better to do is to sort of lay down the necessary sort of tracks. Now anticipating that you’ll have a really good excuse at the seven year mark as to why you’ve spent all of the time outside of Hong Kong that you have given of course that that’s offset by the fact that you have everything else in place that shows that Hong Kong is effectively your only place of permanent residence, because of the facts on the ground that you’ve created in that time.

I also assume that at the time that you make your application, your child will be in school. And that’s again further good evidence as to the fact of settlement at the time that you make your application.

So it’s a tough one to definitively advise you on. However, my best advice would be anticipate that it’s the number of days in Hong Kong that are going to be the issue, and the time that you voluntarily choose to spend away from Hong Kong. And that’s something to a large degree you can control. The requirements are that the continuous, ordinary residents, effectively, are structured in such a way that even on the application form for Right of Abode, any absences that are less than six months don’t need detailing or specific explanation  at the time that you commence your permanent residency processes.

But the Immigration Department will go through a tally to look to see effectively how much time you spent in Hong Kong and all of that time. So my best advice really would be carry on with what you’re doing but don’t spend a lot of time away, in large blocks.

If you can organise your affairs such that you can come into Hong Kong for a week every two or three months or so, prefer a little bit longer than that, and maintain that sort of profile throughout all of the time that you’re in Hong Kong.

And then perhaps when your child gets a little bit older and the opportunity for your child to go to preschool then put the child in preschool. Perhaps that would be, you know, when he’s, he or she is three or four years of age, and show that the child’s been in preschool, even though when he’s not in preschool you’ve chosen to be elsewhere.

So the saving grace, as you’ve quite properly identified, is that you’ve got in place all the infrastructure to suggest that Hong Kong is your, effectively your only place of permanent residence, and the challenge then is just to map out how you decide, to experience your lives over the course of the next five years, and the choices that you make in terms of how much time you decide to spend in Hong Kong, in terms of number of days and also the number of trips that you make back to Hong Kong.

I mean, really avoid staying away for several months at a time, continuously, because that kind of sends the wrong message. But if you are coming back on a regular basis, even if you choose just to spend a small amount of time when you’re back here, I think you’ll find that the profile that you’ll build up over the course of the next five years should see you in good stead. And you’ll want to be able to persuade the Immigration Department that you’ve passed the test for approvability for a permanent residency application.

Check Out VisaGeeza.Ai

All Our Know-How : All Our Experience : Fully Interactive

100% FREE!

More Stuff You May Find Useful

Will A Break In Continuous Employment Mean A Break In Continuous Residence For The Purposes Of A Hong Kong Right Of Abode Application?

Hong Kong Right Of Abode Application – Consider Your Strategy And Plan Early

Time Spent Outside Of Hong Kong With Work – The Impact On Your Eligibility For Permanent Residency

Work In Hong Kong For 5 Years – Leave For 2 – Will I Lose My Continuous Residence For Pr Purposes?

10 Must Have Resources For A Successful Hong Kong Right Of Abode Application

PODCAST ANSWER

Podcast: Play in new window