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Circumstances sometimes conspire against foreign national residents here who find themselves in a quandary as to whether or not their continuous ordinary residence here has been broken due to decisions made (voluntary or otherwise) earlier on in their lives in Hong Kong. In this situation, will an application for the Right of Abode fail?

QUESTION

“I have been resident in Hong Kong for 6 years and 2 months. First as a dependent and now under non local graduates scheme. I have had a residence throughout this period, owned a property for part of the period (sold due to divorce). But I was studying in Beijing for 2 years during this time and returning to Hong Kong during holidays and at least every 2 months. I also have a child in Hong Kong who lives with my ex wife who visits me regularly. Will my period of residence only be deemed to start when I returned to Hong Kong in February 2011 and re-secured an employment visa? Essentially, has the period I was travelling in and out on a visitor visa stopped my period of residence for Right of Abode purposes even though I was ordinarily resident under the plain English meaning. You may assume I have all necessary paperwork to show tenancies, bank details, tax returns etc.”

ANSWER

In order to qualify for the Right of Abode in Hong Kong, you have to show that you’ve been continuously an ordinarily resident for a period of not less than seven years. You need to upheld a residence visa throughout all of this time, and any absences that manifested themselves during those seven years need to have been of a merely temporary nature, as evidenced by what you leave behind to return back to at the end of your temporary stay abroad.

So in this question, the issue is whether the two years that you spent not holding a residence visa, being outside of Hong Kong, studying in Beijing, and then ultimately returning back to Hong Kong, whether that in your life circumstances, together with the fact that you have family in Hong Kong, or there’s a child that you’ve been returned back to throughout those two years, will that time spent in Beijing serve to break the continuity of ordinary residence for the purposes of that Right of Abode application?

In my experience, the answer is I think that you’ve probably broken your continuity of residence. Unfortunately, although the concept of permanent residency is granted on the strength of the notion of settlements, and you certainly have an opportunity to put forward an argument once you’ve been here for seven years to suggest that even though you did spend a couple of years on a temporary sojourn abroad, you did have everything in place throughout that time to suggest, through your pattern of behaviour, and the fact that you returned back to Hong Kong once you set to a complete, that that time spent away did not in fact break the continuity of ordinary residents.

But it’s one of those situations where you only know once you have made your application. The challenge, I think, is going to be that the Immigration Department is probably going to apply the hard and fast rule against you. Suggest that because you didn’t have a residence visa during those two years, and perhaps the circumstances in your life precluded you from possessing that residence in any event or by suspect.

But my earnest advice is get to seven years and give it a try. It doesn’t cost you anything. Application argue forthrightly that you were settled in Hong Kong throughout all that time. You did have a child, you did come by, it was just that you didn’t have the necessary circumstances to avail you with a residence visa for Hong Kong and consequently you were in a position to possess one.

That’s the argument that I had at the moment usually only a time spent in Hong Kong as a visitor during the state of administered flux.  But give it a try, good luck.

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