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An excellent question on the Right of Abode came in just now. Raises a really interesting point of professional practice the likes of which very rarely present themselves these days.

QUESTION

I have recently been declined Permanent Residency status from HK Immigration, but believe I have grounds to appeal, and would like your advice. 

I am a Canadian citizen residing in Hong Kong as an Ordinary Resident from October 2004.

From June 2008 – January 2009 I was out of work (no employment visa), but still living in Hong Kong, staying on a tourist visa. HK Immigration declined my application based on this time period stating that: 

“Being a person with visitor status at the material time, section 11(10) of the Immigration Ordinance Cap 115 under which any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure, is applicable to your period of stay in Hong Kong on visitor status.”

During this period I was searching for work, and was still paying rent and utilities in Hong Kong, holding and utilizing my Hong Kong bank account, and conducting myself with the intention of settlement in Hong Kong. I did have a new job contract which stated I could commence work when my new employment visa was approved which came through on the 12th January 2009.

I understand that there has been a break in my continuous ordinary residence of 7 months, however I believe I may have grounds to appeal based on:

I was residing in Hong Kong during this period searching for work (I have a contract stating that I would commence my new job based on this) with the intention (Which still exists today) of settlement in Hong Kong.

 – I was paying rental/utilities, had a bank accounts in place with the intention of taking Hong Kong as my place of residence.

 – The application for my employment visa was placed in November and the application timeframe has pushed out the period from 5 months to 7 months

 – I have all taxation forms for the last 7 years proving it is my intention to settle in Hong Kong.

 Listening to your podcasts, I understand I will only get one shot at an appeal.

 My questions are:

 – If I build an appeal based on the circumstances above, would I have a good chance of having the ruling over-turned and Permanent Residency granted?

 – Do you know of other cases where there has been a break in the 7 year continuous period but Permanent Residency status was granted? And if so, on what grounds was the break in ordinary residence over-looked?

Look forward to hearing from you.

ANSWER

Hi, thank you very much for raising this question.

I think you’ve been hard done by and I can see your frustration. It’s an interesting example for me because it’s starting to confirm to me in my own mind that there could be a six-month rule in play which the Immigration Department are prepared to accept as being a reasonable length of time that could be said to be administrative flux in your continuity of ordinary residence. What I mean by this is that you find yourself between jobs, and in the meantime your employment visa expires and you don’t have your approval for your new employment visa, so in that time you are out of state employment visa status. So the only status available to you is visitor visa, and there is no hard fast rule exactly how long that can be. And because there’s no published Gazette which sets out those time frames, you only learn by experience. So it could well be that they’re playing a hard and fast rule against you.

So the trick really is to take it to the appeals process and seek to ask the Immigration Department to confirm is there such a hard and fast rule? And if so, you know, how long is it? And then you need to go on and make your case out on the merits of the evidence of settlement as you stated them.

And this should then give you a good shot of appeal at best. And at worst it will give you a good solid foundation of facts upon which to mount a higher appeal later on if you so choose to do. That’s the strategy I would adopt in this case.

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