How Can My Chinese Girlfriend And I Create The Immigration Circumstances To Allow Us To Relocate To A New Life Together In Hong Kong?

Posted by The Visa Geeza / in Investment Visas, Special Programmes, Your Question Answered / No responses

Being a Chinese national resident on the Mainland makes it difficult to relocate to Hong Kong…

QUESTION

I’m a British and Australian citizen (dual nationality) living in Australia and I have a mainland Chinese girlfriend, presently living in China.

We wish to move to Hong Kong to live together and I want to start a technology business there.

I have about $300K HKD cash available and my Chinese girlfriend has probably four times that available too.

We both have investment assets that could be accessed fairly readily which are larger than the cash levels we have available.

My goal is that once I get the business legally registered and start operating, to generate enough revenue to then get into the Hong Kong science park and establish proper offices, start hiring, and grow the business etc.

How do we go about doing this in the best way possible?

ANSWER

On the face of it, this question would appear to beg a relatively straightforward answer. Unfortunately, because your girlfriend is presently a PRC national who’s resident on the mainland, the opportunities for her to relocate to Hong Kong are quite limited in so much as there will have to be a certain amount of, in a sense, fancy footwork for both of you to be able to achieve your ultimate objective, which is for you to be both working and invested in your own enterprise, and clearly carrying on the lives that you wish to carry on together after your relocation to Hong Kong.

So what I propose to do is to break this answer down into the opportunity for you and then the opportunity for your girlfriend, and then try and tie it all together with a series of options that might make sense for you in all the circumstances.

But, just to be clear from the very get go, the idea of her being able to simply relocate to Hong Kong and join in the business that you’re planning to establish as you relocate yourself from Australia is not going to happen. It’s going to have to be done in a roundabout way.

So here we go. Effectively, from the information that you supplied to me, it would appear that you have all the necessary resources to successfully complete an application for a business investment visa. Now, I don’t propose to labour the requirements for approval under the business investment visa because appended to the end of this post is another piece of content that exists on our website that talks in quite some considerable detail about the requirements to pass the approvability test for a business investment visa.

But I’ll just take it as given that you’re in a position to do that, so then we can move on to the situation as regards your girlfriend. So here the options for you are:

Firstly, you can essentially if you’re in a loving committed life partner relationship, you can get married. And then after you have secured your own business investment visa for Hong Kong, you can sponsor her for a dependent visa and she’ll be able to move from China to live with you in Hong Kong. And at the point of activating that dependent visa, she will be lawfully employable and she’ll be able to join you in your new enterprise. So, that’s available to you if I say you’re in a loving, committed life partner relationship and you’re not just doing it for immigration purposes.

The second option is for her to apply under the Quality Migrant Admission Scheme if she is a person of exceptional talent, both academic and professional. I haven’t seen her CV so I don’t know much or if indeed anything about her background and for all practical purposes, whether, you know, she’s a candidate for this programme. But, the Quality Migrant Admission  Scheme (QMAS) is an option for her even though only 23% of all applications in the QMAS get approved, 77% of those approvals do go to mainland Chinese nationals who are resident on the mainland.

So, that’s an option if she’s got a sterling CV. Be aware though, it’s a hell of a black box. You’re not going to know what her chances of approval are until the selection committee announced the results. It’s really very, very opaque. You’ve got no ability to really understand what’s going on in that deliberation process and it’s going to take between twelve and 15 months for that process to play itself out.

So you’re still going to have quite a weight ahead of you. Even if such an application does go on to represent approval for her, she could then, on the other hand, apply for a student visa in Hong Kong and undertake a course of study at a recognised tertiary education institute, either at Bachelor level or at any Master’s level if she’s already completed a bachelor’s degree in China. Now the advantage of this is that effectively she would be able to move to Hong Kong almost straight away. She would complete her course of study and for the purposes of this example I’ll suggest that it’s a master’s degree.

But she’ll complete her master’s degree in one year and at the end of that year she will be able to secure a one year in a sense unlimited working visa under the Immigration Arrangements for Non-Local Graduates (IANG). And that would mean that she’d then be in a position to immediately join your firm, working for the company that you’ve established in the meantime and assuming that uh during the currency of what would have then been two years since you started the business, she got a student visa and then worked for you for one year under IANG, your business has then gone on to become uh, solidly entrenched commercial enterprise such that it can be deemed a suitable and credible sponsor.

At the end of her one year free working visa privileges under IANG, you will then be able to use your company to secure an employment visa extension for her. And assuming that your business stays in business all throughout the preceding five or six years, she’ll be able to be sponsored by that business all the way through to seven years when she’ll be able to adjust their status to permanent residency and effectively your problem goes away. So, those are the rational opportunities for her to join you in Hong Kong in a sense directly.

Another way that you might wish to consider would be to put on hold for at least twelve months your plans to relocate to Hong Kong, and then secure immigration permissions for her to be temporarily resident in Australia with you under some visa class that’s suitable in the constructs of her life and her plans for Australia while you wait out the one year period that’s required whereby; under the General Employment Policy of Hong Kong, a chinese national who has held a residence visa in a country outside of China and has lived there for a minimum period of twelve months will be able to make an application for immigration status in Hong Kong as though she were just a regular foreign national. So in that respect as though she were, as she is in your instance, an Australian or a British national. But this application must be made from outside of Hong Kong and you could then effectively make an application for both of you to secure business investment visas both of you investing into your proposed business in Hong Kong and assuming that you can pass the approvability test as I’ve detailed a little bit earlier in the answer, then you might both of you be able to secure permissions to join in that business in Hong Kong in your own right and then come to Hong Kong together and implement your business plan. But that would require, as I say, her moving from China to Australia first to be with you and to be in Australia for at least twelve months before the application for a business investment visa is made in her name.

And she would have to be outside of Hong Kong all the while that that application was being considered by the Immigration Bepartment, which as you can see from the post that I’ve included as regards the approbability test, can mean at least six months waiting time.

So no easy answers for you. There are certain pathways for you to achieve your outcome, but it’s not going to happen overnight and you may find that you’re going to have to perhaps tread a journey through to your joint lives together in Hong Kong that’s going to be a little bit around the houses before you are able to achieve what you wish to achieve. Okay, I hope you found that useful.

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If I Do Volunteer Work For A Charity Based Overseas But Also Operating In HK Whilst Holding A Visitor Visa Am I Breaching My Conditions Of Stay?

Posted by The Visa Geeza / in Visitor Visas, Your Question Answered / No responses

What is the deal if you help out a charity on a volunteer basis whilst holding a visitor visa in Hong Kong?

Volunteer work for a charity based overseas but also operating in HK?

QUESTION

Hi Visa Geeza,

I am  Canadian and I first came to Hong Kong on April under a 3 month training visa as part of a university program.

While doing my training (an internship) I met the director of an NGO that is both a registered charity in Hong Kong and a registered non-profit in Vancouver.

I ended up volunteering for the NGO after my internship for about 4.5 months while looking for a job in Hong Kong.

I volunteered for the Vancouver branch of the NGO doing remote work such as emails and social media, basically stuff that can be done anywhere.

I was a visitor in Hong Kong at the time and also traveling in Asia.

Is it considered legal for me to work for this Canadian NGO while I was in Hong Kong?

Basically I was doing remote work  as a Canadian for a Canadian organization.

I just happened to be  doing it on my laptop in coffee shops in Hong Kong.

Hoping you can help me!

ANSWER

This is one of those hazy situations where you’re caught between two pillars, where it is almost impossible to anticipate any kind of sensible resolution to the dilemma that you’re facing. It is quite clear under Hong Kong law that you are not allowed to take up any kind of employment in Hong Kong, paid or unpaid, without the permission of the director of immigration.

So even when you’re in a situation where you’re volunteering your time, therefore conceptually need to make an application to the Immigration Department for their permission, or at the very least, a statement of no objection to you engaging in a specified activity. The problem is that because you’re working on a volunteer basis for an NGO, it’s highly unlikely that you would have all the necessary approval criteria in play that would allow the Immigration Department to positively consider an application and go on to approve it.

Therefore, it kind of begs the question that if the Immigration Department is telling you on the one hand you need their permission, but on the other, the operating criteria for the grant of permission to be able to do that isn’t available. Because this would be such a strange situation, the Immigration Department won’t really know how to deal with it.

You’d find that your application would probably not get entertained in any meaningful sense to the extent that you could get a positive resolution within the short time span that you’d expect to stay in Hong Kong as a visitor. And, there lies the rub, because this is really all about what you are doing as a visitor in Hong Kong rather than work per se.

And, as you would expect that your visit time in Hong Kong would come to an end quite soon. If you are generally helping out remotely and you are doing some things, as you suggest, in a coffee shop at the end of a computer, would the Immigration Department find that unreasonable?

Would they object to it? Would they want to prosecute you for breach of conditions of stay? I can’t speak for the Immigration Department on what they would do, obviously, but in my experience, it just seems to me that they would probably, expect to see you leave Hong Kong and take that activity elsewhere without putting the resources to waste in trying to prove some sort of point as to what is permitted and what is not permitted activity under the visitor visa category, when clearly doing some things that are of good to both the canadian organisation and to the Hong Kong organisation, far be it from me to say that what you’re doing is lawful I would never be able to say that to you.

But by the same token, would the Immigration Department take you to task for any of this? And would they engage resources to look into providing you with express permissions, given that as a canadian citizen, you’re only going to be getting 90 days here as a visitor anyway?

I suspect nothing, really a case of, I would say, let sleeping dogs lie. But understand that the visitor visa is designed for you to come and visit. It’s not for you to engage in any kind of employment activity, irrespective of where the recipient of the contribution that you’re making to their fortunes is located.

So, sorry, a bit of a convoluted kind of non-answer to a question that I think doesn’t really have a straightforward answer, all told. But good luck nonetheless.

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I Have A PRC National Spouse Resident On The Mainland – Can She Get A Dependant Visa For Hong Kong?

Posted by The Visa Geeza / in Employment Visas, Family Visas, Your Question Answered / 5 responses

The question of immigration status for mainland resident spouses of current or aspiring Hong Kong residents is a bit of a hot potato. As this PodCast answer sets out, there is a dual track system in place in the immigration system which makes for winners and losers – and for once, those with the Right of Abode miss out.

This question has been lingering for a while, but the answer remains applicable even today.

QUESTION

“My employer wishes to relocate me from our Shanghai office back to our Hong Kong office. I previously had a Hong Kong work visa from 2007-2010.

I’ve very recently been married to my mainland Chinese wife. Will the fact that she is mainland Chinese adversely affect our ability to get a work visa for myself and a spouse visa for her?

What steps can I take in order to improve the likelihood that we are approved (besides the marriage certificate, mutual bank statements, and photos showing that we’ve been together for a long time)?”

ANSWER

In recent years, PRC national mainland resident spouses who are being sponsored for dependent visas by foreign nationals living or seeking to live in Hong Kong can apply for dependent visa just like any other foreign national account. Consequently, in your circumstances, you can apply for her visa to join you as your spouse without concern in respect to the nationality and the fact that she’s resident on the mainland at the moment.

And this is contrary to the situation faced by residents in Hong Kong who have the Right of Abode, that is, their permanent residence. You see, spouses of Hong Kong permanent residents can only sponsor their mainland spouses into Hong Kong on the one way permanent system, which is subject to a daily quota and as a backlog of many, many years.

And actually this is the same for foreign national permanent residents and native Chinese permanent residents of Hong Kong alike. So, when you make your application for an employment visa to be relocated back to Hong Kong from Shanghai, you simply include your wife on the ID990B employment visa application form.

And then submit the documents to show that you’re often married, that you live together until now, and that you can financially support her. She will need an endorsement in her travel document from the local public security bureau in Shanghai as well. But after that, basically your application should be very straightforward.

And I wouldn’t anticipate that you’ll have any problems being able to relocate to Hong Kong together.

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Long Term Business Visit To Hong Kong – Do I Need An Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 2 responses

Business visit to Hong Kong? With Hong Kong having such a liberal visa-upon-arrival regime (with more than 160 nationalities being granted permission to visit for between 7 and 180 days – depending on which passport you carry), it is understandable that there is confusion as to what is permitted activity if you are a ‘business visitor’ in the HKSAR.

This question provides an opportunity to get to the heart of this issue once and for all.

QUESTION

“Hi, Your websites are really informative. Thanks for making all this information available for free. I do have one question which I would like to have an answer for though.

I co-own and manage a small company in the UK (6 staff altogether) and we do a lot of business with one company in Hong Kong especially. Due to a contract we have just signed, I need to transfer myself to HK for up to one year in total, although I will probably travel to and from the UK several times in that period. I am trying to understand if I need to get an employment visa for Hong Kong. My business will carry on as normal in the UK (my brother and I run it together) but for all practical purposes I will be based out of Hong Kong for those 12 months.

Any advice you can offer would be really appreciated. Thank you!”

ANSWER

If you come to Hong Kong as a business visitor, the question is begged as to what is permitted activity under that immigration status. And typically business visitors must generally contain their activities to for example, attending business meetings or fact-finding discussions or this type of activity that gets to the heart of the possibility of some kind of transaction, with your counterparties in Hong Kong.

You can come for example to make sales calls to potential business partners clients, as long as whilst you’re making those sales calls you’re working for an entity that’s established outside of Hong Kong. You can come to sign contracts or conclude contracts indeed, submit formal tender proposals, and support the submission exercise through the delivery of presentations and supporting representations; you can participate in overall product orientation, you can attend short term seminars, you can oversee the installation or the packaging of goods, but you can’t actually be responsible that is, go hands on in relation to the installation or the packaging of those goods.

Likewise, it’s permitted activity to participate in exhibitions or trade fairs although it is not permitted activity to roll your sleeves up and start, for example, building the booth within the trade fair. You could assemble from a kit that you brought with you. That’s natural. But if you had to order timber locally and you needed to interact with local contractors and take responsibility for the formal building of your stand, you would need work authorisations for that. Ah, and it’s perfectly okay to come and participate in for example, litigation if you’re going to suing somebody or you’re being sued and you need to give evidence.

So in all things considered, business visits allow you to do all the kind of activities that are peripheral to commercial activity and where it can be said that you’re actually getting involved in the provision of services or your implementing activities in relation to the commercial endeavour that brought you into Hong Kong in the first place.

You’re going to need an employment visa, and this really sort of translates itself into a sort of common sense understanding, if you’re going to come for or four months at a time and you are a UK citizen and you get 180 days as a visitor, and during those three or four months you’re living in some service department and at 09:00 in the morning you’re reporting to your counterparty’s office and you’ve got a dedicated desk and you’re sitting there and you’re on the telephone and you’re preparing paperwork and you’re doing the kind of activities that actually go towards the implementation of the commercial aspect of what brought you to Hong Kong in the first place. That’s really work.

If it walks like a duck and it talks like a duck, in actual fact it’s quacking its head off, you are in fact a duck, therefore you need to have an employment visa. So, whilst there are some differences between the activities which are permitted by regulation and those that are allowed in practise, if you are going to be discharging your employment duties in Hong Kong, the type of things that you would ordinarily be doing back in the UK, albeit it’s more practical for you to be in Hong Kong on the ground doing that stuff, you need to have an employment visa.

Therefore my advice in this situation would be to not rely on the business visit category. Even though you’re going to get 180 day period of state each time you present yourself at the border, make an application for an employment visa. The Immigration Department will take into consideration all the circumstances of your case and if you’ve got a genuine contract and you’ve got a business back home that is going to continue and in fact is supporting the activities that have brought you to Hong Kong in the first place, the Immigration Department will undoubtedly grant you the employment visa.

So, make that application and don’t be tempted just to rely on the business visit category simply because practically you get it underneath a day each time you present yourself in Hong Kong at the border.

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I Lived In Hong Kong For 11 Years – And Have Been Gone For The Last 7 – Can I Still Get Permanent Residency?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / 2 responses

It happens a lot more often that you might imagine. You’d think that the many early years in Hong Kong ought to count towards your right of abode but all too often disappointment is in the offing…

QUESTION

Thank you very much for this informative website! I hope you’ll be able to answer my question, I’m not sure if its a common scenario or not.

I was born in Singapore and I lived in Hong Kong from 1994 – 2005 (11 years) and moved when I was nearly 11 because of my father’s job, and it has now been 7 years since I left to go and live in Thailand.

My mother has a Hong Kong Permanent Identity Card (and was working for an airline there) but I do not. I had a dependant visa endorsed in my passport at the time I left with my parents.

This usually wouldn’t be a problem after leaving Hong Kong, however there are two education sponsorship programmes that I would like to apply for in Hong Kong which requires you to have a permanent HKID.

I have gone to the immigration office about three times in the past 7 years as we do go back quite often, and every time we ask an officer, he says “if you are living in Hong Kong, you can apply for permanent residency.”

Is this true?

Seeing as I have already clocked up 11 years in Hong Kong, all I am missing in the application form is the current residency card.

Does this mean that if I go to university in Hong Kong starting August this year, that I could get my residency card, and then with that, apply for my permanent residency?

The way I see it, although I have been away for a considerably long time, but I am coming back, so this would technically be my 11th year total living in Hong Kong (and I have proof of having been there for 7 years ‘ordinarily’ with my school records, etc.)

I hope my question was clear enough and thank you very much in advance!

ANSWER

This is a very interesting question, and it does strike a chord with quite a number of people in Hong Kong who find themselves in your situation. So I’m grateful to you for having raised the question and hopefully I can shed some light on the situation and how your present immigration status in Hong Kong is affected by your life circumstances.

Your mother is a permanent Hong Kong identity card holder and on the basis that you had been born in Hong Kong and your mother had been a permanent identity card holder at that time, then at the point of your birth, your eligibility for a permanent identity card would have been established and effectively in the wake of that there could have been a very good opportunity for you to continue to argue now, many years later that you are a permanent resident of Hong Kong.

However, that’s theoretical and hypothetical in this situation because you weren’t born in Hong Kong, you were born in Singapore; so consequently your eligibility for a permanent identity card wasn’t established at the time of your birthday. And consequently it meant that the immigration status that was available to you when you came back to Hong Kong with your mother was that of a dependent visa.

And as you stated in your question, you held the dependent visa all the way through to the age of eleven, and then effectively, you left Hong Kong. Now the interesting thing is that after you had been in Hong Kong as a dependent visa holder, just after your 7th, possibly your 8th birthday, you could have, or your parents could have, made an application to have your eligibility for a permanent identity card verified, at the age of eight years of age, on the strength that you had been ordinarily resident in Hong Kong with your parents for a minimum of seven, and at that point you would have effectively been in the driving seat for a permanent identity card.

Subsequently, once you got to the age of eleven years, when the identity card is issued to you, and had that been, if that had occurred, in fact, then effectively at the age of eleven, you would have had your identity card issued to you possibly before you left Hong Kong.

And then on the basis that you have been back in Hong Kong on at least one occasion every three years thereafter, your permanent identity card status, your Right of Abode, in fact, would have been maintained. And uh, uh, effectively the question that, uh, uh, you’re asking today would have been answered in the affirmative.

However, unfortunately, because you only held a dependent visa for the first eleven years of your life in Hong Kong, at the time that you left with your parents to go off to Thailand, effectively you abandoned your continuous ordinary residence at that time; and what that means is that when you come back to Hong Kong in the future, you’re going to have to get a student visa.

The first eleven years of your life in Hong Kong effectively would have been lost. So, it’s unfortunate. It’s certainly not going to assist you with the sponsorship programmes that you’re lining up to make an application for. But if it is any kind of consolation, effectively what will happen in terms of your life going forward is you’ll come back to Hong Kong as a student.

One would assume that you’ll spend three years here as a student, you’ll graduate,you’ll be able to join the workforce straight away, if you start working for a Hong Kong employer within six months of you having graduated from university, because the Immigration Arrangements for Non-Local Graduates give you those privileges.

So that’s effectively going to take you to three and a half years. One assumes that a three to a four year working career in Hong Kong will have seen you continuously know an old resident in Hong Kong again for the requisite seven years and then you’ll be able to go on to secure the Right of Abode as an adult in your own right.

But unfortunately, in light of the facts that we’ve got in your question at the moment,  you’re not going to be able to secure the Right of Abode at this point in time.

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Hong Kong Visas For Aged Parents – What Options Exist For Elderly Parents Of Temporary Residents Here?

Posted by The Visa Geeza / in Special Programmes, VG Front Page, Visitor Visas, Your Question Answered / 8 responses

Hong Kong visas for aged parents – the options for long stay visas for elderly parents of non-permanent residents here are quite limited…

First Published October 8, 2013 – Still of Interest Today

QUESTION

Hi,

I’m married (Singaporean) and working for a major financial institution here in Hong Kong right now.

I have a working visa.

My mother 60 yrs old (Singaporean) has been living with us since March ’13, exiting every 3 months out of the country to renew her stay.

We would like to get her a long stay visa of some sort so we don’t have to worry about her getting stopped at immigration.

Could you please advise if there are any Hong Kong visas for aged parents that we could apply for, for her?

Thanks.

ANSWER

Yes, this is a very tough one indeed. The problem that you’re facing is that your mother is not eligible for a dependent visa sponsored by you because you are merely a temporary resident at this time by virtue of having held or are holding, in fact, an employment visa.

Once you’ve been converted from a temporary resident to a permanent resident, or at the very least, a long stay unconditional stay resident. That is, once you’ve been here for seven years and have gone on to become a permanent resident or have secured unconditional stay or have the Right to Land, in those circumstances, you will be eligible to apply for a dependent visa for your elderly mother on the strength of her being dependent upon you, which conceptually at that time, but it’s not applicable now, as you can appreciate, as long as you can show that you can put a roof over her head and food on a table and that her medical needs are insured for, then this problem will go away over time.

But until such a time, unfortunately, because you’re a temporary resident, you don’t have any rights to sponsor your elderly mother to live with you. So, in a practical sense, you’re left really only today with the visitor visa and all the challenges that are associated with a three month limit of stay as you do with your nationality and running the gauntlet at the border each time that you make an exit and a re-entry, I’ll come back to this subsequently in this answer.

But there is one other visa class that you might be in a position to, or she might be in a position to qualify in her own right. That is the Capital Investment Entrance Scheme visa. And this is where if she has assets to the tune of HKD10 million and, um, has, uh, beneficially owned them for at least two years immediately prior to making an application for a capital investment entrance scheme visa.

Then after a due process of what only takes six to eight months, if she’s prepared to lock those HKD10 million into qualifying investment asset classes, ring fenced in a financial institute and managed by them accordingly, as long as she maintains those investments in Hong Kong for two years at a time, she’ll be able to get a two-year visa extended for two years all the way through to her having been resident in Hong Kong for a full seven years, whereupon she’ll be able to uplift the HKD10 million investments and convert her status through to permanent residency or indeed unconditional stay at her preference.

So, there is one option that would be suitable for her if she’s able to muster the resources to be able to lock into Hong Kong on that basis. Quite a big ask, I appreciate, but it is one category of visa that is available to you, assuming that she qualifies from a personal net wealth perspective.

So apart from that, realistically, unless she goes to university and gets a student visa, what you’re otherwise left with is the status quo of the visitor visa; you could attempt to secure a prolonged visitor visa on the strength of you being the last remaining relative and that she’s a emotionally, spiritually and financially dependent upon you, but this would be a positive act of discretion on the part of the Immigration Department. In my experience, usually the Immigration Department don’t respond positively to such applications. It’s not unknown for them to effect a positive act of discretion upon such an application, but it’s very much a long shot and it’s not something that you should rely on as being available to you as a matter of right and process.

So the final thing is to really, as I say maintain the status quo and undertake what I’ve called the Shenzhen Shuttle which you’re experiencing presently entering and exiting, and each time that she makes a re-entry, she satisfies the immigration officer over her bona fides as a visitor.

And on the basis that the immigration officer at the border is satisfied of her bona fide, she’s not a risk to the potential for breaching her conditions of stay. Then it’s quite likely that for at least for the considerable future, especially if you’re accompanying her in this exercise and already available to answer any questions that the officer at the border might have as to why she’s spending so much time in Hong Kong, then you might very well be able to carry this off on an ongoing basis until such a time as either you leave Hong Kong or you’ve been here for seven years.  It’s not recommended, but, you know, needs must and in your circumstances, it is what it is.

So, I’m sorry I don’t have much more positive news for you; in the final analysis, she’s a visitor and Hong Kong immigration is set up to manage visitors on that basis.

And because you’re merely a temporary resident, unfortunately you don’t have any rights in over yourself to be able to sponsor an elderly parent for any kind of more sophisticated, or indeed useful immigration status for her. So, whilst the news is not great, I hope you found this useful.

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Can You Claim Right Of Abode In Hong Kong If Your Deceased Spouse Had PR Here But You Didn’t Live With Him At The Time Of His Death?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / No responses

Is the Right of Abode in Hong Kong passed along to the spouse of a permanent resident such that is claimable after the death of your PR holding husband..?

First Published November 20 2013 – Still of Interest Today

QUESTION

This query is for  my cousin who is an adult.

She was born in Pakistan and got married to a Hong Kong non-Chinese permanent resident.

She has been in Hong Kong many times first after her marriage in 1994 then various times up to  2003.

She has two children one of which was born in Hong Kong.

She currently resides in Pakistan.

She was in Pakistan with her 2 children when she found out her husband passed away in Hong Kong.

She returned once to Hong Kong to verify this,but then came back to Pakistan with her children who were infants at the time.

She now feels able to cope with life in Hong Kong without her husband now that he children are older.

My query: Is there any basis or chance that she may be able to gain right of abode?

I would be grateful if you could help.

ANSWER

As a foreign national seeking to become a permanent resident of Hong Kong, there is a very defined way to go about procuring permanent residency status and unfortunately it doesn’t transfer to the spouse of a deceased permanent resident by virtue of the fact of death, as the Right of Abode in Hong Kong is directly tied to having been continuously an ordinary resident in Hong Kong for a period of not less than seven years immediately before you apply for the status.

So if we look at your cousin’s immigration profile in Hong Kong, it would appear that sometime after 1994 when she got married, assumingly to a person who subsequently went on to become a parent resident of Hong Kong, after 1997 she would have during her time together with her husband have had a dependent visa sponsored by him.

So from the period after 1997, if she did not live continuously in Hong Kong for at least seven years in her own right, then she at best would have at the time that she made her last departure in 2003 have been merely a dependent visa holder, and if that dependent visa on the one hand was not extended whilst she was in Pakistan, and two, even if it had been extended, if she was not having residence in Hong Kong with her husband and indeed her children at that time, it would be very difficult to sustain the idea that she was continuously an early resident in Hong Kong after 2003.

But I don’t have any specific instructions as to what her immigration status was at that point in time, so I will just make the assumption that as of 2003 she was not a permanent resident, and that she would not be entitled to apply for permanent residency by virtue of the fact that she was not resident in Hong Kong. She was indeed at all times after 2003 resident in Pakistan.

So given that her husband subsequently died holding permanent residency for Hong Kong, unfortunately in her own right, notwithstanding her marriage to an individual with that status, if she’s not in Hong Kong herself holding a dependent visa, she can’t claim ordinary residence. So she’ll never be able to qualify for the Rights of Abode. So, unfortunately that closes the avenue in relation to her husband.

You also make the point that one of her two children was born in Hong Kong again without any evidence as to the immigration status of the child; it’s difficult to advise whether this would apply to her or not, but I will make an assumption that one of the children did secure, or at least have the eligibility for the Right of Abode established at the time of his or her birth. And on the basis that, until he’s 21, he can show that he’s been settled in Hong Kong, he will at the age of 21 be able to become a permanent resident in his/her own right.

And on the basis that, your cousin is then over 60 years of age, and this child who is holding the Rights of Abode can show to the Immigration Department that he’s settled in Hong Kong rather than being settled in Pakistan, then that child will be able to sponsor its mother who will be over 60 years of age for dependent visa permissions as a dependent elderly parent.

But thats a couple of  initiatives sort of down the track, as it were. But that would appear to me an option going forward.

It’s not sufficient just to have the status at the age of 21 as a child. You need to have been settled in Hong Kong to be able to be a valid sponsor for elderly parents, dependent visa permissions and then assuming that your cousin comes to Hong Kong, lives in Hong Kong continuously for seven years as a dependent elderly parent sponsored by a permanent resident child who settled in Hong Kong, she will be able to then go on to secure Rights of Abode subsequently. But she won’t be able to do it while she’s living in Pakistan. She’ll have to be in Hong Kong.

I hope you found this useful.

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